Page is loading...
Print Logo Logo

Behind the Numbers: Employment Discrimination Cases at the Federal Level Decline, But Why?

Bill Nolan

William A. Nolan

Columbus Managing Partner

Readers who enjoy a little data may want to download (free) Professor Theodore Eisenberg’s recent study of federal civil rights legislation data, including federal employment discrimination cases (available here). While certainly longer than a blog post, the article is quick and interesting reading. With respect to federal employment cases, Professor Eisenberg notes the following:

  1. As a percent of the federal court docket, employment discrimination cases have steadily declined (though still a substantial portion).
  2. There has been an increase in the settlement rate of employment cases.
  3. Median jury awards when plaintiffs are successful before a jury (still a very small percentage of federal employment cases) have increased more than the rate of inflation.

The article considers as one possible explanation of fewer filings and more settlements the theory that plaintiffs’ lawyers are getting the message – the win rate for employment cases is lower than that for most other kinds of lawsuits. I offer other factors warranting consideration. One is the increasing cost of litigation, in part due to the costs (to all litigants) of discovery of electronic data. Employers might be more likely to “throw a little money” at a case even if they do not believe it has merit because of the relative costs of litigation. Another possible factor, at least with respect to the gradual decline in complaints, is whether more plaintiffs are taking their cases to state courts.

I have written here before about an apparent trend towards more activity on the state and local legislative level in the employment law arena. Those observations have been more directed to recent legislation, but in my state of Ohio, for example, plaintiffs have been able to keep discrimination cases against out-of-state companies in state court because of a state Supreme Court ruling creating the possibility of individual liability. (This allows the plaintiff to sue an individual supervisor, therefore defeating diversity jurisdiction that would allow the employer to remove the case to federal court.) This factor would be quite difficult to study on a national basis, but strikes me as one possible additional consideration.


12 Days of Handbook Updates: AI Policy

January 2, 2024 | Labor and Employment, Federal Laws and Legislation, High Stakes Employment Issues, Union Organizing

Sex, Power & the Workplace Responding to the Skeptics Q&A: Part 2

April 4, 2018 | Workplace Culture and Conduct, Labor and Employment

The Gradual But Decided Shift to a Much More Complex World of Employment Law

September 29, 2017 | Employment Discrimination, Labor and Employment


Do you want to receive more valuable insights directly in your inbox? Visit our subscription center and let us know what you're interested in learning more about.

View Subscription Center
Trending Connect
We use cookies on this site to enhance your user experience. By clicking any link on this page you are giving your consent for us to use cookies.