When it comes to employment cases, judges are killing the Civil Rights Act of 1964

Some may recall the recent effort by an Atlanta law firm to examine statistically the number of times employment cases got tossed on summary judgment in the Northern District of Georgia. Because the study was a serious one and the results stunning, I posted several times about it. See here, here and here.

In fact, I helped the authors do a similar study of my cases. See here and here. As it turned out my summary judgment dismissal rate was higher than the aggregate rate for the Northern District of Georgia. That is, my dismissal rate was four points higher than the rate in the Northern District of Georgia (86% v. 82%).  That caused me to write this: “The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with ‘yours truly’ too.”

So, that’s the background. Yesterday, Vince Powers, my friendly nemesis, advised me about a powerful article that Nancy Gertner has written on this subject. Gertner now teaches law at Harvard, and was for many years one of the most distinguished federal trial judges in the nation. She is also a really great person with a warm and funny sense of humor. Here is Nancy’s article. I urge you to read what she has written. It will make you think hard.


17 responses

  1. Plaintiff’s lawyers summarily judge employment cases everyday. 90-95 percent of the time we tell prospective clients they don’t have a case. I usually make this judgment after 20-25 minutes of speaking with a prospective client

  2. I have a two-pronged response.

    First, assuming Ms. Gertner is correct, what is the solution to this dilemma? How can it be corrected?

    Second, something still bothers me. The article does not explain why Judges collectively interpret the law that way. It’s odd, because judges don’t seem to be stupid as a rule. It’s especially odd because they have life tenure in order to be independent. Is there something else at stake here, such as a particular phrase in the law, or is it because of Supreme Court precedent? There has to be a bigger explanation than “Judges do it because they do it.”

  3. Many years ago, when I first started practicing employment law representing plaintiffs, a federal judge asked me about my case. He warned me in a polite way that I had better have “direct” evidence to be taken seriously in his court. For many reasons, we as members of the court in various capacities have built in institutional biases against plaintiffs in employment cases. That is very unfortunate for the folks who suffer genuine discrimination.

  4. On my more cynical days I think that the courts have an institutional bias against the disadvantaged. Look at the way the case law interpreting the 4th Amendment has evolved over the years. Look at how it is practically impossible succeed on a Section 1983 claim for anything other than sheer brutality. Or consider how how conspiracy law, evidentiary presumptions, and relaxed rules for proving intent have made it extremely easy to convict people of crimes, except of course for white collar crime cases.

  5. Or it may simply be that the “good” cases settle, either pre-suit or prior to the summary judgment stage. That certainly explains why so few plaintiffs win employment law trials–if there’s risk of liability, defendants tend to settle.

    That being said, Judge Gertner raises interesting facts in the cases she highlights. This report from the National Employment Lawyers Association may provide some interesting points for you to consider in your own court and how the various civil rights laws get interpreted: https://www.nela.org/temp/ts_95A36414-BDB9-505B-DC0A517D8C90425295A36424-BDB9-505B-D0BFED596D367E98/NELAReportonJudicialHostilityToWorkersRightsProfessionalDiversityFinal.pdf

  6. The Courts need to return to the “used sparingly” standard which was eliminated, not by an Act of Congress, by the Circuit Court. Judge Gertner is unfortunately correct in her analysis. The paragraph below from a brief a decade ago is no longer is the law. Gone are the days when summary judgment was “a treacherous device” instead it has become norm. Discrimination in the workplace has not gone away, only the access to the Courts for many.

    “In considering a summary judgment motion, the underlying facts and all reasonable inferences must be drawn in the light most favorable to the non-movant.” Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986). “In Anderson, 477 U.S. at 249, Celotex, 477 U.S. at 323-23, and Matsushita, 475 U.S. at 586-87, the Supreme Court established that a summary judgment motion should be interpreted by the trial court to accomplish its purpose of disposing of factually unsupported claims, and the trial judge’s function is not to weight the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Johnson v. Enron Corp., 906 F.2d 1234 (8th Cir. 1990).
    Because discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the movant. Lynn v. Deaconess Medical Center-West Campus, 160 F.3d 484(8th Cir. 1998), (citing Crawford v. Runyon, 37 F.2d 1338, 1340 (8th Cir. 1994). The Eighth Circuit Court of Appeals has cautioned that “summary judgment should seldom be used in employment discrimination cases.” Id. at 1341, citing Johnson v. Minnesota Historical Soc’y, 931 F.2d 1239, 1244 (8th Cir. 1987); cert denied, 488 U.S. 1004 (1989) see also; Hardin v. Hussmann Corp., 45 F.3d 262 (8th Cir. 1995) (“summary judgments should only be used sparingly in employment discrimination cases,” citing, Haglof v. Northwest Rehabilitation, Inc., 910 F.2d 492, 495 (8th Cir. 1990); Hillebard, 827 F.2d at 364.”

  7. The specific case Judge Gertner addresses suggests a concerning result. But the statistics on which she then relies are incomplete — perhaps necessarily so — but incomplete. The fact that a high percentage of employment-discrimination suits lose on summary judgment could be the result of all sorts of factors, only one of which is the one Judge Gertner discusses. Perhaps a higher percentage of employment-discrimination cases are in fact without merit. Perhaps district judges are simply following precedent established by the SCOTUS. Perhaps the higher percentage of summary judgments in employment cases is the result of some combination of all of these things and the concern Judge Gertner raises. We don’t know because the statistics don’t tell us why the judges decided as they did — only that they granted summary judgment.

  8. This is an old issue. In Gallagher v. Delaney, EDNY Judge Jack Weinstein observed that “a federal judge is not in the best position to define the current sexual tenor of American cultures in their many manifestations,” and that “a jury made up of a cross-section of our heterogeneous communities” is the best arbiter of such issues. Gallagher v. Delaney, 139 F.3d 338, 341 (2d Cir. 1998). Judge Weinstein observes that “[w]hatever the early life of a federal judge, she or he usually lives in a narrow segment of the enormously broad American
    socioeconomic spectrum, generally lacking the current real-life experience required in interpreting subtle sexual dynamics of the workplace based on nuances, perceptions and implicit communications.” More detail on this issue is found here: http://uscourtsgov.info/liz_schneider_article.pdf, which has older statistics on the grant of summary judgment (see, e.g., p. 56, fn 244-“A recent study of published employment discrimination decisions in the Second Circuit found that 41% of “sex claims” survived summary judgment.”)

  9. Jon,

    I don’t doubt what you say. That’s why one can make a good argument that an employment case that gets pitched at the JS stage (1) must have involved a terrible lawyer for the plaintiff because such a lawyer is likely to have taken the case on a contingency fee and that lawyer’s evaluation of the case obviously stunk or (2) there is deep disconnect between the federal judiciary and the plaintiffs’ employment bar about what the precedents truly require.

    All the best.


  10. Dear Southern Law Student,

    Again, you demonstrate why you will become a very good lawyer. You ask the right questions.

    I would answer both questions this way: The law is stacked against employment cases because of decisions of the Supreme Court and the Courts of Appeal and those substantive decisions were handed down about the same time that there was an increasing judicial acceptance at the trial level of summary judgment as a legitimate tool for weeding out doomed cases.

    All the best.


  11. Vince,

    First, thanks again for letting me know about Judge Gertner’s article. I appreciate it.

    Second, as a substantive matter, I like things they way they are. That admitted, I really don’t care if the law changes to the standards you suggest. It would mean more civil jury trials for me, but if that is what Congress and the Court of Appeals want me to do, then I’ll do it. Besides, it would be fun to see Kathleen and you more frequently.

    Third, district judges are getting a bad rap at present for doing what their superiors tell them to do. And, any suggestion that district judges are granting SJ motions because of racial or gender hostility is a nasty smear that is in no way borne out by the data or objective observation.

    All the best.


  12. Judge, as you well know, contingency fee lawyers don’t get paid unless their client gets paid. I haven’t met many people who like to work for free. When contingency fee lawyers take the case, they do so expecting the case will result in a favorable outcome for their clients (and themselves). Not only do contingency fee lawyers work for free until settlement, verdict or summary judgment, they typically invest money into the case through the advancement of costs. I also haven’t met many people who like flush money down the toilet.

    Rarely do victims of employment discrimination pay an hourly rate for a lawyer as they typically have been fired from their job and have no money.

    I’m not convinced there is a disconnect between the lawyers and judiciary; rather, the law keeps getting more difficult for victims of discrimination in the workplace. The situation is further exacerbated by the unexpected exclusion of disputed facts from the final order and on appeal. Sometimes the case submitted for sj consideration doesn’t resemble the case described in the sj order or on appeal.

    It has been suggested that the good cases get settled prior to sj. No…this is not the case. In the overwhelming majority of the cases, nuisance value settlement is the only settlement discussion held prior to the denial of sj. Defense attorneys are smart and know the odds are in their favor. The sj orders that are denied are rarely appealed and thus, there are few good cites to cite when opposing a sj motion.

    The pendulum will swing back at some point…

  13. Kathleen,

    You may be right that the law continues to evolve against employees. I don’t know how to measure whether that is true.

    All the best.


  14. This is only a subset of a much larger problem: Judicial tyranny.

    Judges have been rewriting the law for benefit of themselves and the Guild since the dawn of our Republic. Whereas Thomas Paine proudly proclaimed “that in America THE LAW IS KING,” Thomas Paine, Common Sense 36 (P. Eckler Co. 1918) (1776) (emphasis in original), Judge Posner of the Seventh Circuit admits that the law’s once-vast kingdom “has shrunk and greyed to the point where today it is largely limited to routine cases.” Richard Posner, How Judges Think 1 (Harv. U. Press 2008). The Living Constitution cannot destroy the Constitution, because Justice Scalia and his colleagues murdered it long ago. By usurping the jury’s right to interpret the law, United States v. Callender, 25 F.Cas. 239, 257 (D.Va. 1800) (Chase, J., riding circuit), finding that judges could never be held accountable for anything they did on the bench, no matter how malicious or criminal, Bradley v. Fisher, 80 U.S. 335 (1871), quietly extinguishing the common law right of aggrieved citizens to initiate private criminal prosecutions, and the Lorena Bobbitt-class emasculation of the right to a meaningful appeal, see Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc)—safeguards that were an absolute precondition to the States’ approval of the Constitution[a]—our power-besotted judiciary has staged a “coup d’êtat.” Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 13 (AEI Press, 2003). The reality of modern “law” is that it is now a respecter of persons.

    Something just happens to people when they acquire power over others. On Dec. 20, 2007, candidate Barack Obama observed in a Boston Globe interview that the “President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” specifically noting that he had introduced a resolution in the Senate to remind the President of this limitation.[1] But a mere five years later, this Harvard Law graduate and former professor of constitutional law was killing American citizens via remote control without bothering with a trial, simply because his government did not like the way they exercised their First Amendment rights.[2] The principled Presidential candidate who praised Russ Feingold for his opposition to the PATRIOT Act and said he would oppose it[3] extended it without objection, despite the fact that his former colleague Sen. Dick Durbin (D-IL) “realized it gave too much power to government without enough judicial and congressional oversight.”[4] The President who, while trolling for votes, stated unequivocally that “waterboarding is torture,”[5] has refused to prosecute the self-confessed war crimes of his predecessor,[6] and who campaigned on a platform of protecting whistleblowers has conducted a relentless jihad against them.[7] The man who told us tales of the discrimination he endured as a child[8] gradually found himself on the other side of the fence. And the inevitable happened.

    I am not asserting that federal judges are bad people but rather, that they are mere mortals, seduced by the siren song of power. It is the political equivalent of crystal meth: once you have it, you cannot live without it, will do anything to keep it, and will do things with it you couldn’t have imagined beforehand. Does power corrupt? It is as predictable as the sunrise.

    Every society has had corrupt judges, and every other society has developed a system for punishing them. King Hammurabi of Babylon initiated a one-strike rule, wherein the judge who issued a corrupt ruling was fined twelve times the amount of the judgment imposed, and forever barred from trying future cases. Codex Hammurabi § 5. Herodotus informs us of an innovative antidote to judicial corruption devised by an obscure Persian vassal lord:

    [The judge Sisamnes], being of the number of the royal judges, had taken money to give an unrighteous sentence. Therefore [King] Cambyses slew and flayed Sisamnes, and cutting his skin into strips, stretched them across the seat of the throne whereon he had been wont to sit when he heard causes. Having done so Cambyses appointed the son of Sisamnes to be judge in his father’s [courtroom], and bade him to never forget in what way his seat was cushioned.[9]

    For the first 150 years of our existence as a nation, the English system of appellate review we imported proved adequate to the task of minimizing judicial corruption. Trial court judges knew that their decisions would be scrutinized by an appellate court and if necessary, an aggrieved litigant had a right to have them reviewed by the United States Supreme Court pursuant to a writ of error, resulting in a published decision which became the law of the land. See generally, Robert L. Stern, et al., Supreme Court Practice (8th ed. 2002) at 219-21. But over time, the protections of mandatory Supreme Court review, published written appellate decisions with binding effect, and in some cases, even written appellate opinions at all, see, Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12, have been eroded to the point that the federal statutory right to a meaningful appeal has been effectively eliminated. William Graberson of the New York Times observes:

    With the Supreme Court giving full review to no more than 200 cases a year and the highest courts of many states also limited in the number of cases they can hear, some legal scholars say, the increasing use of abbreviated review procedures by intermediate appeals courts means litigants are quickly losing the right to meaningful appeals.

    One measure of the abbreviated treatment given to many cases, some judges and scholars say, is a sharp decline in the number of decisions Federal appeals courts publish in law books. Unpublished decisions do not establish precedents.

    In studies of unpublished decisions, two law professors, William L. Reynolds of the University of Maryland and William M. Richman of the University of Toledo, say the rulings are usually so succinct that it is impossible to discern the facts of a case or the reasons for the judges’ ruling.

    Court statistics show that Federal appeals courts publish only 24 percent of their decisions, down sharply from 54 percent in 1985. ”It is sort of a formula for irresponsibility,” said Richard A. Posner, the chief judge of the United States Court of Appeals for the Seventh Circuit in Chicago. ”Most judges, myself included, are not nearly as careful in dealing with unpublished decisions.”[10]

    The federal judicial process has deteriorated to the point that complaints can go through the system without ever being considered by an Article III judge. In turn, this effectively abolishes the constitutional right of access to the courts: the one right upon which all individual rights must by necessity depend. E.g., Chambers v. Baltimore & O. R. Co., 207 U.S. 142, 148 (1907); Ashby v. White, [1703] 92 Eng.Rep. 126, 136 (K.B.). As Justice Moody wrote in Chambers, supra, access to the courts is the alternative of force.

    “A government of laws, and not of men.” John Adams enshrined this principle in the Massachusetts Constitution. Mass. Const. art. XXX. But it was hardly a novel concept, even in Mother England As Daniel DeFoe of Robinson Crusoe fame wryly remarked, “Kings are not Kings Jure Divino, that when they break the Laws, trample on Property… and the like, they may be opposed and resisted by force.” Daniel DeFoe, Jure Divino, a Satyr, Intro. v (1706). As Chief Justice Marshall observed, “in Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.” Marbury v. Madison, 5 U.S. at 163. “We hold these truths to be self-evident, that all men are created equal,” The Declaration of Independence, para. 2 (U.S. 1776), and as a logical corollary, entitled to equality before the law. This is the reasonable expectation that the people had, and the outcome they had risked their very lives for. As Justice Miller intoned so long ago:

    No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.

    United States v. Lee, 106 U.S. 196, 220 (1882).

    If our black-robed band of homegrown Ba’athists are unwilling or unable to refrain from abusing the authority entrusted to them, and the law provides no remedy for those injured as a result of that abuse, it may very well be that the only lasting solution to judicial tyranny is the one of Bart Ross. It is worth noting that 18 U.S.C. § 1111(a) only proscribes “murder,” and it is logically impossible for anyone to murder a tyrant. For the words of President Obama–uttered in the acceptance of the Nobel Peace Prize–ring true: “To say that force is sometimes necessary … is a recognition of history.”[11] And that, as Scalia properly acknowledged in the recent Heller (554 U.S. 570 (2008)) case, is the reason why we are constitutionally entitled to own guns.

    If we have gotten to that point–and it can be argued that we have–God help us all, for as Honore de Balzac put it, “To distrust the judiciary marks the beginning of the end of society.”


    [a] As James Madison explained in his introduction of the Bill of Rights to Congress, “I believe that the great mass of the people who opposed [the proposed Constitution], disliked it because it did not contain effectual provisions against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary.” 1 Annals of Congress 450 (Jun. 7, 1789) (stmt. of Rep. Madison).
    [1] Charlie Savage, Barack Obama’s Q&A, Boston.com (Boston Globe), Dec. 20, 2007, at http://www.bos-ton.com/news/politics/2008/specials/CandidateQA/ObamaQA/
    [2] Mark Mazetti, et al., How a U.S. Citizen Came to Be in America’s Cross Hairs, N.Y. Times, Mar. 9, 2013 http://www.nytimes.com/2013/03/10/world/middleeast/anwar-al-awlaki-a-us-citizen-in-americas-cross-hairs.html
    [3] N.H. Debate: The Dems’ Turn, factcheck.org (Annenberg Foundation), Jan. 8, 2008, at http://www.-factcheck.org/elections-2008/nh_debate_the_dems_turn.html.
    [4] Jim Abrams, Patriot Act Extension Signed By Obama, huffingtonpost.com (AP), May 27, 2011, at http://www.huffingtonpost.com/2011/05/27/patriot-act-extension-signed-obama-autopen_n_867851.html
    [5] Barack H. Obama, Jan. 2012?, video at http://www.youtube.com/watch?v=8TaDrHHNXzI (transcribed by yours truly [at 0:40 of the clip]; actual date and circumstances unknown).
    [6] 18 U.S.C. § 2441. Section (c)(1) incorporates international law by reference; torture is defined as a “grave breach” in all four Geneva Conventions, e.g., Geneva Convention (III) Relative to the Treatment of Prisoners of War, art. 130, Aug. 12, 1949, [1955] 6 U. S. T. 3316, T. I. A. S. No. 3364, and therefore, constitutes a federal crime. See e.g., R. Jeffrey Smith, Bush Says In Memoir He Approved Waterboarding, Wash. Post, Nov. 3, 2010, at A-2; after World War II, America prosecuted Japanese soldiers for waterboarding. Evan Wallach, Waterboarding Used to Be a Crime, Wash. Post, Nov. 4, 2007 at B-1).
    See also, 18 U.S.C. § 2340A; United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51 at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force Jun. 26, 1987; ratification by the United States effective Nov. 20, 1994) (same result).
    [7] See e.g., Glenn Greenwald, The DOJ’s creeping war on whistle-blowers, Salon.com Feb. 25, 2011, at http://www.salon.com/2011/02/25/whistleblowers_4/; Greenwald, The WikiLeaks Grand Jury and the still escalating War on Whistleblowing, Salon.com, May 11, 2011, at http://www.salon.com/2011/05/11/-whistleblowers_5/; “Truth and Consequences,” The Rachel Maddow Show (MSNBC, 2008) available at http://www.youtube.com/watch?v=KZALDJ6YC1Q (in re: Thomas Tamm).
    [8] Barack H. Obama, Dreams From My Father: A Story of Race and Inheritance (Random House, 1995).
    [9] Herodotus, Histories, Bk. V, § 26 (tr. George Rawlinson, et al.) (D. Appleton & Co. 1889), Vol. III at 192.
    [10] William Graberson, Caseload Forcing Two-Level System for U.S. Appeals, N.Y. Times, Mar. 14, 1999.
    [11] Barack Obama, Speech (acceptance of the Nobel Peace Prize; Oslo, Norway), Dec. 9, 2009, reprinted at, Obama’s Nobel Remarks, N.Y. Times, Dec. 11, 2009.

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