Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?

by KEVIN M. CLERMONT and STEWART J. SCHWAB

Five years ago we surveyed how employment discrimination plaintiffs fared in federal court.1 We wrote in summary that they have a tough row to hoe. Compared to other plaintiffs, they manage fewer resolutions early in litigation, and so they have to proceed to trial more often. They win a lower proportion of cases during pretrial and at trial. Then, more of their successful cases undergo appeal. On appeal, they have a harder time both in preserving their successes and in reversing adverse outcomes.
This tough tale was an important story for several obvious reasons. For one, employment discrimination cases, the so-called “jobs” category, had come to constitute a very big fraction of the federal civil docket. Such cases then reigned as the largest single category of federal civil cases, at nearly ten percent of that docket.

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