ABF study: Parties think employment discrimination litigation is unfair

A new American Bar Foundation study reveals that plaintiffs' limited resources and tumultuous experiences in litigation lead them to see employment discrimination lawsuits as profoundly unfair. Employer-defendants, too, see discrimination litigation as unfair, but they tend to have resources to manage litigation challenges. The study, "Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation," (Law & Society Review, Vol 46:1, pgs 1-36), is based on a national random sample of employment civil rights cases and 100 interviews with plaintiffs, defendants, and lawyers who were involved in discrimination suits. Co-authored by sociologists Ellen C. Berrey, Steve G. Hoffman and Laura Beth Nielsen, the study identifies stark differences in how plaintiffs and employer-defendants experience employment discrimination litigation and assess the fairness of law. "We wanted to hear, from the actual people involved in employment discrimination lawsuits, what litigation was like for them," said Ellen Berrey, assistant professor of sociology at SUNY Buffalo and ABF-affiliated researcher. "There was one point that nearly everyone agreed on: that litigation is unfair. Beyond that," she added, "their experiences couldn't have been more different. For plaintiffs, litigation is expensive and can bring real personal hardships. Many end up divorced, depressed, even bankrupt. Employers do not like litigation either, but they usually have the resources and expertise to keep these cases under control." According to the study, plaintiffs and defendants agree that the legal process is unfair, but find unfairness only in what is to their particular disadvantage. While plaintiffs begin the process optimistically, the study finds, they face significant obstacles in properly defending their claims. Contrary to their expectations, they rarely get a final ruling based on the substantive merits of a case. These experiences cause them to view the process as unfairly biased in favor of defendant-employers. Yet, employer-defendants find unfairness in the fact that an employee has the power to initiate what they consider a "meritless" suit against the company to which they are required to respond. The findings in "Situated Justice" are amplified by the innovative use of embedded audio in the online version of the published article. Twenty-two audio interviews with the actual plaintiffs and defendants in the cases studied, whose identities have been disguised, can be accessed by viewing the online article (Law & Society Review, Vol 46:1, pgs 1-36). Said Berrey, "On-line media are an exciting new venue for social scientists. They enable us to see and hear our evidence in different ways, which actually can strengthen our arguments. And they provide a great platform for sharing research-based insights. On the American Bar Foundation website, and by viewing the online article, people can literally 'hear' our argument by listening to what plaintiffs and defendants have to say about the unfairness of employment discrimination litigation." "Situated Justice" investigates how popular notions about the even "scales of justice" within the U.S. court system may obscure the reality of egregious inequalities between parties and hinder progress towards genuine equality in the workplace. Berrey concluded, "We have a fundamental problem with the legal system. The primary way that the law deals with discrimination at work -- litigation -- is considered unfair by both parties, and winning in litigation requires considerable financial and legal resources." The American Bar Foundation is the nation's leading research institute for the empirical study of law. An independent, nonprofit organization for more than 50 years, ABF seeks to advance 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. Published: Mon, May 14, 2012

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