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 December 17, 2013

Bill Mitchell

Juries 'Vanishing' in Employment Discrimination Cases for Good Reason


Bill Mitchell is featured in Daily Report for his experienced perspective as an Employment Lawyer to counter an editorial article by prominent plaintiff employment lawyers that the federal bench has been unfair to employees in discrimination cases in Georgia. Here is the article as published in the Daily Report:


I read with great interest the article penned by two of my most distinguished colleagues, Lee Parks and Ed Buckley, about jury trials "vanishing" in employment cases. Having defended employers for 20 years in these cases, I have a much different opinion and would respectfully disagree with their thesis.


As an initial matter, there is no question that Lee and Ed are top-tier employment lawyers in Georgia and, if you don't believe me, ask a number of Georgia juries about the heaps of money they have awarded these lawyers' clients over the years.


Turning to the article's thesis, my colleagues on the plaintiff's side of the bar posit that jury trials are vanishing in Georgia because the Georgia federal bench, through magistrates, "act as gatekeepers to insure that only the more egregious discrimination cases make it to the jury trial calendar of a busy district court judge." The article goes on to state that the magistrates are de facto special masters "routinely decid[ing] fact-based issues under the guise of summary judgment, construing inferences often in favor of the moving party." This conclusion, they say, is ratified by a recent study revealing that 81 percent of (non pro se) discrimination cases were dismissed on summary judgment in 2011-2012.


Respectfully, I think this interpretation of the 81 percent number does not provide a critical enough eye to the realities of how employment practices and employment claims/defense handling have evolved over the years. Rather, I would submit that in today's world, this 81 percent statistic is attributed to the "quality" of cases being filed, which give the federal bench (with three levels of review-magistrate judge, district court judge and Eleventh Circuit) little choice but to grant summary judgment. Let me explain this position.


To begin, certain realities in the average employment case must be acknowledged. The most significant reality is that the black letter law does indeed favor the employer/defendant as employment claims are supposed to be about discrimination-period! (A person can be terminated for good cause, bad cause or no cause as long as the termination basis is not discriminatory.) It is not the fault of the federal bench that the federal discrimination laws have set a high bar for a plaintiff. In many cases, discrimination claims are nothing more than what I would call a "super-negligent infliction of emotional distress" claim where, in the face of objective and documented work deficiencies, the plaintiff "opines" that he/she was a good employee and the termination "must have been due to discrimination." (This always reminds me of "American Idol" tryouts when people with horrible singing voices get cut and complain that "the judges got it wrong." Put another way, many plaintiffs have "perception" issues and, in Georgia, the federal judges aren't buying them.)


Meanwhile, we all know well that many times the plaintiff's greatest leverage point is emotion-not the law. Yet our federal bench in Georgia has a very strong reputation, whether in discrimination matters, civil rights matters or even premises liability matters, to "follow the law." Indeed, off the record plaintiff's lawyers will candidly admit they will take extreme measures to avoid federal court because of this very fact. Suffice it to say, our federal bench should be applauded for this most esteemed reputation rather than be subtly pressured to pursue a different approach based on an innocuous statistic.


Another reality is that a large majority of employers in the past decade have been highly trained on employment discrimination matters. Also, the U.S. Supreme Court has given employers a more definitive road map on how to protect themselves from discrimination claims. Ten years ago, an employer's lawyer would many times begin a conversation with a new employer client by stating, "I wish you had called me before you terminated the person." This was because while the employer would contend that the employee was "horrible," the employee's annual review would show "exceeds expectations" and pay raises. Further, policies relating to adverse employment actions were virtually nonexistent. Hence, while an employer would claim it provided the employee several warnings before termination, there were no supportive documents that automatically made the case a swearing contest-which was bad news for the defendant.


Today, annual employee reviews are more candid and honest about employee deficiencies. Today, employers routinely provide documented warnings before a serious adverse employment consequence occurs. Today, HR is involved in any matter that may lead to a discrimination complaint.


What this means is that through training, handbooks and well-educated HR personnel, the employer is getting things right on the front end and, as a consequence, establishing clearly defensible cases on the back end. And for those of you who view this with a jaundiced eye as a termination "set up" by HR, you would be wrong. Rather, the law has actually worked. It has compelled employers to raise the bar before terminating an employee, resulting in many employees getting the benefit of the doubt and receiving second and third chances before facing an adverse employment consequence. Unfortunately, such employment practices cannot prevent the filing of a charge of discrimination or lawsuit. (Remember the company lawyer's most quoted advice, "We can put policies in place to comply with the law, but that doesn't prevent you from getting sued because anyone can sue you for anything.")


The last important reality is that many of these cases are now resolved before suit through the EEOC or independent processes. There are many reasons for this, but a main one may be due to the proliferation of employment practices liability insurance. A decade ago, an overwhelming majority of the employment cases I handled for employers ended up in suit likely because managers of companies who knew a lot about running a company but not much about employment discrimination were making decisions about discrimination cases. Today, the company decision makers on discrimination cases are routinely educated and very informed HR and insurance professionals. As a result, the employer, employment practices liability insurers and employer's counsel aggressively vet cases, which leads to a culture of early resolutions.


In effect, with the reality of facing exposure of attorney fees that turns a $75,000 discrimination case into a $200,000 case, employers and their carriers are more inclined to resolve cases that they deem are unlikely to be dismissed by a motion for summary judgment. Also, the employer's counsel have become more open in sharing with the employee's counsel "why the employee doesn't have a case" and that routinely leads to dismissals of the charge or perhaps a deminimis settlements such as not contesting the employee's unemployment compensation claim. Likewise, due to damages caps, the employee's counsel have become more open in explaining "why the employee has a case" in hopes of an early resolution, given the unlikelihood of a "lottery" judgment. These factors have incentivized all the stakeholders to engage in early assessment and to seriously consider early resolution especially in, but not limited to, cases in which a motion for summary judgment success is unlikely.


NFL Hall of Fame Coach Bill Parcells said it best: "You are what your record says you are." Coach Parcells didn't blame the rules or the gridiron referees. So, 81 percent of (non-pro se) discrimination cases were dismissed on summary judgment in 2011-2012. The reason is not complicated. At least 81 percent of the time there was no discrimination as a matter of federal law. The combination of improved employment practices, the emergence of EPL policies and emphasis on early resolution for proper cases has changed the discrimination playing field. The problem isn't the law or the judiciary that is duty-bound to uphold the law; the problem is more elementary-the quality of cases simply does not measure up on this new playing field.


"You are what your record says you are."


Cruser & Mitchell, LLP



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