While the odds of any particular workplace discrimination lawsuit settling will obviously depend on the facts specific to each case, overall trends in these types of cases will not be encouraging to plaintiffs. Any lawyer who has handled more than a few employment discrimination cases knows that it is harder to settle, harder to win at trial, and much harder to obtain an early favorable resolution in these cases than it is for most other civil cases. I have always had this feeling personally, and now, after having done some research, I unfortunately have the statistics to back up that feeling. While the difficulty in obtaining a favorable outcome in discrimination cases can be attributed in part to so many of them being litigated in federal court, there is also a strong psychological reason for why employers are more reluctant to settle these types of cases.
Statistically, Employers Want to Settle Workplace Discrimination Cases Less Than Other Types of Civil Lawsuits
It is a well known fact that most civil lawsuits end in settlement. This is also true of workplace discrimination cases, but to a lesser degree. Research (PDF) on workplace discrimination lawsuits filed in federal courts between 1988 and 2003 by the American Bar Foundation revealed that employment discrimination cases “are treated more harshly by the courts, with lower levels of settlement rates, higher rates of summary judgment motions against plaintiffs, higher plaintiff loss rates, and higher appellate reversal rates of plaintiffs awards than is the case for other kinds of civil litigation.” A 2004 study (PDF) by staff at Cornell Law School showed that, on average, 3.7 percent of employment discrimination cases went to trial between 1979 and 2001. While this is a small percentage, it is still more than twice as high as the 1.5 percent average seen in other civil cases over the same time period. The small percentage of cases which go to trial should not be misconstrued to mean that the rest settle. At least 20 percent of employment discrimination plaintiffs lose prior to trial, usually via a motion for summary judgment.
When workplace discrimination cases do settle, it tends to be far later in the litigation process, with only 37 percent of discrimination cases settling “early in the litigation process” as compared to 59 percent for other civil cases. Appeals from both plaintiffs and defendants are significantly higher in employment discrimination cases than in other litigation. On appeal, an employer is far more likely to have an employee’s win reversed (42% reversal rate) than an employee is to have an employer’s win reversed (8% reversal rate).
What these statistics show is a willingness of employers to fight more often, for far longer, and with a much higher success rate in workplace discrimination cases than in other forms of civil litigation. This is encouraged by an apparent anti-employee bias in federal courts, particularly at the appellate level.
Why Employers Don’t Want to Settle Workplace Discrimination Cases
Aside from having an apparent federal court bias in their favor, I suspect the main reason workplace discrimination cases are so hard-fought by employers comes down to the nature of the allegations in these cases versus other civil cases. The majority of employment discrimination cases allege (by necessity) that the employer intentionally discriminated against the employee. The fact that a settlement in a workplace discrimination case involves an implicit admission of intentional discrimination (despite any settlement agreement’s language to the contrary) makes it a much harder pill for a defendant to swallow than a case in which negligent conduct (an accident) is alleged.
Individuals charged with racism, sexism or any other discriminatory bias tend to vehemently deny such allegations, even in the face of strong evidence. Employers are made up of individuals, and few individuals will back down from allegations of intentional discrimination without a fight. It is an attack on one’s character — a personal insult. As a plaintiff alleging discrimination, you should not expect a quick capitulation followed by an apology. Rather, the employer will likely think that it is the one owed the apology for your “slanderous” accusation.
In short, workplace discrimination cases are personal. Whereas most injury litigation is personal only for the plaintiff, discrimination cases are personal for both sides. Understanding this psychological facet of these types of cases may not provide you with much solace as your case is dragged out through litigation and fought tooth and nail, but hopefully knowing why this is happening will allow you to persevere long enough to see it through. I would encourage employment discrimination plaintiffs to consider this element of the case when it comes to settlement discussions. Remember that if your case doesn’t settle and you manage to win at trial, the battle may be far from over.