At the ABA Annual Meeting in San Francisco on Friday, there was a terrific panel discussion by various researchers who have been looking at discrimination cases brought at both the EEOC and in federal courts.  

The program was based on two academic articles over the last few years: One was written by Laura Beth Nielsen, Robert Nelson and Ryan Lancaster and the other written by Elizabeth Hirsh

Here are some of the notable findings: 

  • Ms. Hirsh looked at EEOC cases and found that having some prior legal experience, being a larger employer and having other EEO compliance programs can reduce the likelihood of an unfavorable outcome for employers.

    Put another, small employers, with no prior legal cases and no other systems in place to ensure EEO compliance (like being a federal contractor) are at higher risk when a discrimination claim is filed against them.

    Interestingly, though, those same larger employers are more likely to pay more for settlement and receive mandates to change their workplace policies while at the EEOC stage.

  • Based on the other research, employment discrimination litigation overwhelmingly consists of individual cases, a majority of which end in a small settlement.

    Notably, outcomes of cases are difficult to predict at the outset of litigation. 

    However, class actions tends to fare better for the individuals bringing such claims.

    In short, the authors conclude that discrimination lawsuits are "not so much an engine for social change, or even a forum for carefully judging the merits of claims of discrimination, as it is a mechanism for channelng and deflecting individual claims of workplace injustice".

This research obviously has some important implications. For small employers, the research should be seen as a caution sign; it appears that there are built-in disadvantages for those employers in the legal system.

For all employers, even though most cases end in a small settlement, the research also shows that it’s difficult to predict the outcome at the outset.  That makes for a challenge for employers trying to plan for a particular outcome.

The articles are well worth a read. You can find some background on the American Bar Foundation website here.