When attending the American Constitution Society’s panel following the release of Schwab and Clermont’s seminal report, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, I was expecting the defense representative on the panel to attempt to explain away the results (even in the midst of what has to be silent glee that their side is winning so handily). But no explanation the other side can come up with puts a dent in the basic premise of the report: employment discrimination plaintiffs have it worse than other kinds of plaintiffs in our federal courts.

Cyrus Mehri’s excellent testimony before the Senate Judiciary Committee (Part I, Part II) lays out the new report’s three basic premises:

• When employers win at trial, they are reversed by the U.S. Courts of Appeals 8.72% of the time. When employees win at trial, they are reversed 41.10% of the time.
• There has been an absolute drop in employment discrimination cases of 37% from fiscal 1999-2007.
• Juries rule in favor of plaintiffs in job cases 37.63% of the time versus 44.41% in non-job cases. District court judges, however, rule in favor of jobs plaintiffs only 19.62%, while ruling in favor of non-jobs plaintiffs 45.53% of the time.

Rather than dealing with why federal district court and appeals court judges might be biased, I guess it’s easier to try to explain away the absolute drop in cases.  And if you’re a defense lawyer, you might try to explain in a way that doesn’t implicate the other two findings, as if the fact that plaintiffs have difficulty winning before trial court judges, and hanging onto even the successes upon appeal, doesn’t have anything to do with it.

Instead, we’re expected to believe some of the following excuses, according to Eric Dreiband, former general counsel of the EEOC, who is now back to representing defendants at Jones Day.  (Listen to Dreiband’s presentation; Windows Media Player required). And another defense-oriented article responding to the study repeats some of the same excuses.

1.  Plaintiff’s attorneys are taking more wage and hour cases under the FLSA.

There has admittedly been a rise in the number of wage and hour cases, especially class actions, brought under the Fair Labor Standards Act in recent years.  Depending on who you ask, there are varying reasons for that, whether it’s because employers are trying to cut corners by misclassifying employees, there’s an increased awareness of the FLSA among workers, making it more likely they’ll ask questions about their classification, or if, as plaintiffs’ attorneys will acknowledge, it’s an act of self-preservation because of the three points detailed above.  Bringing a case under a statute that doesn’t require evidence of intent can be a lot easier than bringing a discrimination case:  either an employer violated the FLSA or it didn’t, and it doesn’t matter what it intended to do as it does in discrimination cases.

But this point is almost irrelevant if you’re one of the hapless plaintiffs with a discrimination case, not a wage and hour case.  Defense attorneys aren’t arguing that it’s impossible for plaintiffs with strong discrimination cases to get a lawyer, because all of the skilled plaintiffs employment lawyers no longer have time to take them, because that’s simply not true.  Bottom line:  the fact that there are now more FLSA cases doesn’t detract at all from the premise that employment discrimination plaintiffs have it bad.  They’re two completely different things that both happen to affect workers.

2. More cases are ending up in arbitration, instead of the courts.

Certainly, there are employers who believe that requiring all of their employees to submit their employment claims to arbitration benefits them, and they’re probably right. As Paul Bland’s excellent blog post reminds us,

“If you want to work here,” millions of employees are told, “you have to agree that any disputes you have with us–even if we cheat you, even if we break our contract or break the Fair Labor Standards Act or a basic civil rights act–will be submitted to binding arbitration with an arbitrator who is chosen by an arbitration company whom we pick. If you don’t like it, you can’t work here.”

Plenty of evidence suggests that just like what’s happening in federal court, employees forced into the arbitration process don’t fare very well. (See Alexander Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?, Employee Rights and Employment Policy Journal, Vol. 11, No. 2 (2007). In fact, employees forced into arbitration may fare worse there than they do in court, according to Colvin’s piece, the leading academic study of thousands of publicly reported employment cases in arbitration. So again, the fact that more employees have cases in arbitration instead of federal court hardly contradicts the conclusions of the Schwab and Clermont study, when the evidence shows that plaintiffs forced into arbitration are even worse off there than in court.

3. More plaintiffs are going to state court instead of federal court.

In many states, plaintiffs in discrimination cases have the option of choosing between state and federal court, and attorneys must make the strategic decision about where the case is most likely to be successful. Admittedly, strategy sometimes dictates that a worker will fare better in state court, in states where there are no damage caps limiting the type and/or amount of damages that can be awarded, and where judges and juries may be more receptive to employment cases than those in federal court, making it more likely that a jury will hear a case rather than have it thrown out on summary judgment.

However, for every state where a plaintiff is likely to fare better in state court, we can name one where they will be worse off in state court, or not have the ability to make that choice at all. Some states don’t even have their own antidiscrimination statutes, or have what’s known as a “private right of action” which allows workers to enforce their rights in court. Others have more restrictive damage caps than those under federal law, which haven’t changed since 1991. (That’s longer than it’s taken to raise the minimum wage, and we know how long that took!) Some state judges are relatively unfamiliar with employment statutes compared to federal judges, and others, forced to rely on campaign contributions, tend to favor those who can contribute the most to their re-election campaigns, while federal judges are appointed for life. Unfortunately, we have a relatively small amount of evidence about outcomes in state courts, but what we do have makes this one a tossup at best.

4. More cases are being resolved by the EEOC pre-litigation.

Of all the excuses proffered, this one had the most potential to persuade us that plaintiffs were actually benefiting. The EEOC has invested heavily in its mediation program which works to resolve claims before they are investigated, or, in some cases, as part of the conciliation process between employer and employee. And Mr. Dreiband, as the EEOC’s former general counsel, was very knowledgeable about the EEOC’s program.

But, as the saying goes, where’s the beef? I asked Mr. Dreiband following his presentation whether the EEOC had studied whether mediation was actually beneficial for plaintiffs in terms of damages awarded. He was unaware of any such studies, and indeed, the studies on the EEOC’s website are limited to the parties’ satisfaction with the process, as well as participating mediators’ evaluation of the program.

Initially, it sounds good when you hear that cases are resolved quickly, and before there is any litigation. Most people just want to move on with their lives, rather than spend years fighting their employer in court. But several aspects of the push to resolve cases so early should give worker advocates pause. A case resolved before any discovery takes place may mean that key evidence that makes the case a valuable one never sees the light of day. A case resolved where the employee doesn’t have an attorney may mean that the employee is outmatched and overcome by the power imbalance on the other side, as rare is the case where an employer wades in to any case without representation. And a process where 13.5% of cases settle for non-monetary compensation makes you wonder just how many people out there are settling for an apology or a good reference, no matter how much they were damaged.

Admittedly, a certain percentage of these cases would have been lost anyway, but settling a case for a token amount of money and an apology may not be much better. Before the EEOC so heavily touts the benefits of mediation, they should study exactly who benefits. Is it the employer who benefits most when litigation goes away quickly and cheaply? We simply don’t know.

So let’s review:  reducing the number of cases in federal court, no matter what the reason, doesn’t:

• explain why plaintiffs fare so much worse in front of federal district court judges than juries;
• explain why employment discrimination plaintiffs fare much worse than other plaintiffs on appeal;

And it doesn’t even explain that the reduction in federal court cases means plaintiffs are faring better in other forums. In fact, it may mean that, like the movie “Dumb and Dumber,” Schwab and Clermont’s next report should be called “Worse and Worser.”

When you think you’ve suffered from discrimination or harassment at work, the Equal Employment Opportunity Commission (EEOC) is supposed to be there to protect your rights as a worker. But your experience with the EEOC can be shaped by the very first phone call. Right now, the EEOC is scrambling to cover the phones which receive incoming calls from the public. Will this mean that cases with merit get lost in the shuffle, due to inadequate training and/or inexperienced staffers? Only time will tell, but it could be disastrous.

For the past three years, the EEOC has contracted with a private entity to run the National Call Center (NCC), which handled initial contacts to the agency’s 53 field offices nationwide. Vangent, Inc. (formerly Pearson Government Solutions) contracted with the EEOC to run the NCC, which received and handled approximately 65,000 calls and 3,000 e-mails each month. The outsourcing of the call center functions, handled in Lawrence, Kansas, was controversial from the outset. (See GovExec.com article.)

Employee unions complained about poorly trained employees who did not have the expertise in analyzing discrimination cases fielding calls, and lawmakers objected to privatizing the handling of civil rights complaints. The union representing EEOC employees called the call center launch “an oppressive day in the history of the 40 year old civil rights agency.” (See CCH article.)

The passage of time did little to alter the initial concerns about the NCC. The NCC contract was set to expire on September 20, 2007. Rather than continuing the initial pilot, Congressional appropriators eliminated funding for its continuation in the EEOC’s Fiscal Year 2008 budget. As a result, in August the EEOC voted to move back to an in-house phone answering team, and to allocate funds to hire a consultant to advise and assist the agency on transitioning to a decentralized configuration. (See EEOC Press Release of 8.13.07.) The vote extended the call center contract for three months to help ensure an orderly transition. (See Washington Post article.)

However, it appears the transition has been anything but orderly. With the expiration of the three-month extension rapidly approaching, the consultant advising the EEOC on the transition recommended another three-month extension. However, in November, two of the four EEOC commissioners voted against the extension, believing that the first extension had been squandered without an adequate transition plan developed. (See Washington Post article.)

The EEOC then issued a press release warning that service to the public could be disrupted due to the failure to extend the contract. EEOC Chair Naomi C. Earp, who supported the contract extension (and who has been a strong proponent for the NCC throughout its existence) remarked in apparent frustration,

Unfortunately, today’s Commission vote denying a reasonable extension of the National Contact Center will likely result in disrupted service to the public. Creating an in-house system and making a seamless transition is a complex and time-consuming process. We continue working as quickly as we can to put a new system in place. But we ask the public to be patient when contacting the EEOC during this transition period.

EEOC Press Release of 11.7.07.

Now the transition period is over, and even more chaos is apparent. The center’s closing date was December 19, but it was not until December 12 that the EEOC had a plan for handling the calls. On that date, the Commission voted to hire temporary employees to cover the phones, and to continue the contract with Vangent for its interactive voice-recognition answering system for three months, at a cost of $250,000. (See Workforce Management article.) The temp employees will be trained on customer service “soft skills” and on EEOC procedures, according to the EEOC’s director of field programs, Nicholas Inzeo.

EEOC Commissioner Stuart Ishimaru expressed frustration with the transition. “Here we are a week before the phones are turned off and we have a proposal for what to do next,” he said. “We established an atmosphere that this is not urgent.” Vice Chair Leslie Silverman disagreed, stating “What we’re trying to do here is provide the best customer service we can under the circumstances.” (See Workforce Management article.)

If temp workers are getting even less training than call center employees formerly received, as acknowledged by Inzeo, the public may be in trouble. According to Gabrielle Martin, president of the National Council of EEOC Locals No. 216, the union representing EEOC employees, hiring the right people to answer the phones is a major undertaking.

The public deserves more than expensive answering services. The Union always has advocated that skilled Investigative Support Assistants, or ISAs, should be hired to handle the phones. If the Commission does not invest in skilled workers to answer the phone and counsel the public, or chooses to have its extremely limited staff answer the phones, the Commission will have sabotaged the public again.

(See CCH article.)

It sounds like it will be a while before fully trained and knowledgeable employees will be hired to answer the phones, as a result of the Commission squabbling that has prevented adequate preparation for bringing the call center function back in-house. Given that all employees with potential discrimination claims must first contact the EEOC and file a charge in order to press ahead with a lawsuit against their employer, let’s hope there aren’t too many casualties before trained employees can give members of the public adequate guidance.