Professors Kevin Clermont and Stewart Schwab have published a study of how employees fare when they bring employment law claims in federal court. In Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? which is to be published in the Harvard Law & Policy Review, they summarize their findings by saying:
Compared to other plaintiffs, [employment discrimination plaintiffs] 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 upholding their successes and in reversing adverse outcomes.
Clermont and Schwab find that when plaintiffs lose and appeal in employment cases, they have a ten percent (10%) chance of winning. When employers appeal, they have a thirty percent (30%) chance of winning. San Antonio attorney Tom Crane suggests that this could explain why fewer plaintiffs are filing their employment discrimination claims in federal court. This is hardly the outcome Dr. Martin Luther King, Jr., hoped for when he organized the March on Washington to win passage of the Civil Rights Act.
