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American Bar Foundation Research On Employment Discrimination Tackles Issues Raised By New Fair Pay Act

February 2, 2009, Press releases

New Social Science Research Shines Light on the Harsh Realities of Employment Discrimination Litigation

 February 2, 2009 – CHICAGO, IL – An American Bar Foundation study of employment discrimination litigation highlights the challenge of developing effective remedies for workplace discrimination, even as President Obama sought to strengthen workers’ rights by signing the Lilly Ledbetter Fair Pay Act, on January 29, 2009.  The new law overrides the Supreme Court’s 2007 5-4 decision denying Ledbetter’s suit for compensation of back wages on the basis of gender discrimination, on the grounds that the suit was filed after the statute of limitations for such claims had expired.  Ledbetter initially won the suit, but the Supreme Court overturned the decision on appeal. Subsequent attempts in Congress to override the judicial ruling had stalled; however, the Lilly Ledbetter Fair Pay Act of 2009 was the first bill signed into law by President Obama in the 111th Congress.

 The new law takes effect as empirical research has begun to shed new light on unemployment discrimination and its treatment in the Courts. Article 2, section 2 of the Lilly Ledbetter Fair Pay Act of 2009 states: “(Congress finds that) The limitation imposed by the Court on the filing of discriminatory compensation claims ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended.” An ABF report, Contesting Workplace Discrimination in Court, introduced new findings on employment discrimination litigation at a conference in November, 2008 at Stanford Law School. Key findings included empirical data indicating that the task of proving employment discrimination is often a lonely and uphill battle for workers; few cases ever make it to trial, and if they do, the plaintiffs often ultimately lose in court.

The study, an analysis of 1788 randomly selected federal employment discrimination cases filed from 1987-2003, reveals startling patterns:

·        The overwhelming majority of employment discrimination cases consist of a solitary plaintiff. Cases involving class actions, and representation by the EEOC are extremely rare, less than 4%.

·        Only 6% of filings go to trial, and only 2% of cases actually result in a plaintiff win at trial and.  The most common outcome is a modest settlement.

·        Under 1% of  cases in the sample were certified class actions

·        Trials-invariably the least common EDL outcome- have become increasingly infrequent throughout the entire 1987-2003 period examined.

·        Dismissal is the most likely outcome when the complainant files without legal representation, accounting for 40% of all such cases, compared to an 11% dismissal rate when the plaintiff has representation

·        Claims of racial discrimination remain the most common (making up 40% of filings), followed closely by claims of sex discrimination (in 37% of cases).

 The ABF research findings on employment discrimination are the work of research professor Laura Beth Nielsen, who is also a Northwestern University sociologist and the director of the legal studies program there, and her co-authors, Robert L. Nelson, the foundation’s director and Northwestern University Professor of Sociology and Law, and ABF faculty fellow, Ryon Lancaster, who is also a faculty member at the University of Chicago. The researchers are nationally recognized sociologists who specialize in employment civil rights and pay discrimination litigation.

“In this new legislation, the Obama administration is restoring some of the rights that have been narrowed by the federal judiciary over the last eight years,” said Professor Nelson.  He added, “Although plaintiffs will continue to face difficulties pursuing claims of discrimination, without the kinds of formal rights provided in this Act, their cases would be a nonstarter.”

New York University Law Professor and expert on employment discrimination Samuel Estreicher said, “this kind of careful research about what actually happens when people file discrimination lawsuits is unprecedented and vitally important for policy-making,” as he underscored the report’s value for policy-makers, academics, and lawyers.

 The findings, along with other key research on employment discrimination were presented as part of the November, 2008 conference convened by the Discrimination Research Group, a special project funded jointly by the American Bar Foundation, the Center for Advanced Study in the Behavioral Sciences at Stanford University, and the Ford Foundation.

Summaries of the findings of the Discrimination Research Group can be found at the following url:

 The American Bar Foundation is the nation’s leading research institute for the empirical study of law.  An independent, nonprofit organization, for more than fifty years the ABF has advanced the understanding and improvement of law through research projects of unmatched scale and quality on the most pressing issues facing the legal system in the United States and the world.


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