The Vanishing Jury Trial in Employment Litigation

November 14, 2013

By A. Lee Parks and Edward D. Buckley

The civil jury trial is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.

– Thomas Jefferson

The Seventh Amendment contains an unmistakable mandate, derived from our Founding Fathers’ vision of freedom, that the “right of a trial by jury shall be preserved.” Congress passed the Civil Rights Act of 1991, taking the fact finding inherent in Title VII and Americans With Disabilities Act actions away from District Court Judges, particularly regarding claims for emotional injury and punitive damages, placing it in the purview of the American jury.

At this point, employers were confronted with the real prospect of articulating their “legitimate non-discriminatory reason” for adverse actions to a jury. That significant Constitutional and statutory right has now been largely swept away in the federal court responsible for the Northern District of Georgia, which includes Atlanta and all of north Georgia. A jury of one’s peers has been replaced by a summary judgment “paper process” driven by deposition transcripts and attorney-finessed affidavits. The once revered starring role played by a District Court Judge in integrating our society is now relegated to a bit part. In this district, all sex, race, national origin, color, religious and disability discrimination cases are assigned to a United States Magistrate.

The Magistrates act as gate keepers to insure that only the more egregious discrimination cases make it to the jury trial calendar of a busy district court judge. On the whole they do the job extremely well, almost too well, as very few discrimination cases survive the summary judgment process. Even when the material facts are in hot dispute, Magistrates functioning as de facto special masters routinely decide fact based issues under the guise of summary judgment, construing inferences often in favor of the moving party. The steady stream of summary judgment orders coming from the Magistrates are often opuses of fifty or more pages, parsing through the evidence, openly commenting on the credibility of witnesses and chiding the plaintiff for the inferences drawn from circumstantial or statistical evidence. These orders reflect a view of our society as having been largely cured of discrimination instead of a place where sexual harassment and racial discrimination, often subtle in form, are alive and well in many work places.

A key component of the enforcement scheme Congress devised to fight employment discrimination was incentivizing private sector lawyers to act as private “attorneys general” so they would accept these difficult cases on a contingent fee basis in reliance upon being awarded a fully compensatory fee by the court if they prevailed under the fee shifting provision in the legislation. Many of the skilled lawyers practicing in this district, who once routinely accepted discrimination cases and litigated them through trial to vindicate important civil rights, now turn down the majority of the discrimination cases they review. Why? Because they are forced to spend the bulk of their time and money on the defensive, trying to avoid the statistically probable summary dismissal of their client’s claims. The economic risk they must assume to litigate discrimination cases has been significantly increased by the Magistrate referral system which requires plaintiffs to litigate their cases before two judges, meaning they must invest more time and incur more expenses than ordinary litigants, all for a much reduced chance at winning.

As many employment lawyers reduce their discrimination case loads due to economic necessity rather than any change in philosophy, more discrimination in the workplace goes unchallenged. “Middle of the road” and circumstantial cases with no large financial upside will no longer be filed because the judges, by effectively eliminating the jury trial as the ultimate decisional mechanism, have shifted the balance of power too far in the employer’s favor.

With every new “reach” by the courts, the mountain of summary adjudications creates precedent that narrows the law in a way that works to effectively eliminate the right to a jury trial. This is now a crisis that cannot be ignored. The lawyers who regularly represent discrimination victims in this district have long experienced the wholesale dismissal of good claims, but they had no hard empirical proof that the referral process was in fact flawed, systematically eliminating Title VII cases from the docket. Now they do. The law firm of Barrett and Farahany conducted a study to objectively assess the impact of summary judgment on discrimination cases in this district. They reviewed all discrimination cases decided in 2011 and 2012 where a defendant filed a motion for summary judgment.

The study reviewed 445 cases that were affected by summary judgment, and determined the survival rates of various types of discrimination claims over two years (2011-2012), confirming what practitioners already suspected: a jury trial was no longer a realistic expectation in employment discrimination cases filed in this district. Where claimants were represented by counsel, 81% of all discrimination cases which went to summary judgment were dismissed. In addition, 94% of all discrimination cases that went to summary judgment were adversely affected by having one or more claims dismissed. The bottom line is sobering: only 11 out of 226 such cases (5%) made it through summary judgment without one or more or all claims being dismissed.

The Atlanta-Journal Constitution conducted its own analysis of the study, and published a front-page story on October 20, 2013, confirming the results. But, the article stopped short of answering the most interesting and important question. How could it be that, in the seedbed district where the civil rights movement began, the home of Martin Luther King, Jr., employment discrimination claims are held to be so uniformly non-meritorious?

The debate has now shifted to the cause of these unprecedented dismissal rates. To jump start the causation debate, the authors solicited comment from attorneys with expertise in this area of law, from academics working in the field of empirical law research, and from judges. They sought to explore and vet all possible explanations for what is now a documented reality. Were the losing plaintiff attorneys inexperienced or of poor quality? Were the “good” cases uniformly settled, leaving only the weak cases to be dismissed? Has the Eleventh Circuit Court of Appeals set the bar so high for plaintiffs trying to prove employment cases that the Magistrate Judges are compelled to dismiss cases that would be viable in other circuits? To aid in the search for causation, a second study was conducted, reviewing the discrimination cases filed in the Northern District of Alabama. The two districts were both in the Eleventh Circuit, had a comparable sample size, and a similar population demographic. Empirically, with the same circuit court precedent, one would expect the same survival rates. However, the results were markedly different, with only 66% of represented claimants having those discrimination claims that went to summary judgment dismissed. The Alabama results belied the theory that bad attorneys were to blame, as practitioners in both districts would have similar skill levels. It also cut against the idea that Eleventh Circuit precedent compelled such a high dismissal rate. The one difference between the two districts was Georgia’s mandatory Magistrate referral system that resulted in one-hundred and three Magistrate reports recommending full dismissal, which were adopted in all but one case by the District Court Judges (96 adopted in full, while the remaining six were adopted with modifications that did not affect the holdings of full dismissal). Inversely, of those thirty three R&Rs that recommended against summary judgment, or only recommended partial summary judgment, nine were overruled, resulting in full dismissal.

Members of the federal bench are now involved in the debate. For example, the study captured the attention of Nancy Gertner, a retired federal judge in the District of Massachusetts and current professor at Harvard Law School. She is now partnering with the authors on similar studies in five additional federal districts: the Southern District of Florida, the District of Puerto Rico, the District of Massachusetts, the Northern District of California and the Northern District of Illinois. Judge Gertner has been quoted describing the training new federal judges receive on “how to get rid of civil rights cases.”

Why is this type of inquiry important? First and foremost, it exposes some flaws, likely unintended, in the enforcement of anti-discrimination laws. When jury trials are effectively eliminated as a potential outcome, it emboldens employers to put profit over diversity. It also denies plaintiffs the ability to effectively participate in the adjudication process, to have their proverbial day in court. When basic civil rights are at stake, shouldn’t the litigant get to tell his story live, to his peers, instead of being forced to “reduce it all to writing” at great expense, just to have the case dismissed via summary judgment? In this two-dimensional process, the least credible of witnesses on either side of a case become, through attorney-crafted affidavits and deposition transcripts, reasoned and articulate. Alternatively, the honest and credible witness can be painted in a brief as untrustworthy. That doesn’t happen at trial, where the overall demeanor of a witness can create or destroy credibility. That is why Congress intended these determinations be made in multi-dimensional, live-action jury trials.

The overarching question now is whether the Magistrate referral system plays a dominant role in the creation of such an aberrational dismissal rate for discrimination cases filed in the Northern District. It is the one variable that differentiates the Georgia and Alabama districts. Here is what we know: the original reason for implementing the referral system was to expedite the resolution of discrimination cases, presumably because important rights are at stake. In 1986, the Atlanta and Newnan divisions within the Northern District of Georgia implemented the forerunner to the referral system via an internal operating procedure providing for the referral of discrimination cases to a special master. This procedural change worked; it reduced disposition time for discrimination cases from 8.8 months in 1985 to 4.7 months in 1986. For a discussion of the history of the referral system in the Northern District of Georgia, see Parker v. Dole, 668 F. Supp. 1563 (N.D. Ga. 1987).

That purpose is no longer being served. But, the District kept the referral system in place despite the fact it now actually congests the disposition process. The referral system is now actually at odds with Title VII’s explicit mandate to expedite the resolution of discrimination cases. Under the statute, district judges are directed to schedule jury trials within one hundred and twenty days after issue has been joined. 42 U.S.C. §2000e-5(f). Yet, the referral system works to defeat the statutory objective of expediting the resolution of discrimination cases by forcing plaintiffs into a paper trial waged on two fronts which has the effect of denying them the jury trial they were promised not only by Congress, but by the Constitution. During the 2011-2012 time frame evaluated by the Study, it took over eight months on average from the filing of a defendant’s motion for summary judgment until the issuance of the District Court’s order either affirming or rejecting the Magistrate’s report and recommendation.

The frequency of adverse summary adjudication is eviscerating employment discrimination plaintiffs’ constitutional rights to jury trials, thereby abrogating the 1991 amendments that specifically bestowed that right on discrimination victims. The experience in the Northern District of Georgia is not an isolated occurrence:

“Today employment discrimination plaintiffs still must swim against a strong tide — in the federal district court and on appeal …. [D]efendants in the federal courts of appeals have managed over the years to reverse forty-one percent of their trial losses in employment discrimination cases, while plaintiffs manage only a nine percent reversal rate. The most startling change in the last few years’ data is the substantial drop of almost forty percent in the number of employment discrimination cases in the federal district courts. Perhaps the plaintiffs’ lawyers are now recognizing their low chances for success in federal court and thereby becoming less inclined to venture into that court system. If so, they may see the federal courts as impeding the realization of rights congressionally bestowed on workers.”

Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, Harv. Law & Pol. Rev., Winter 2009, at 35.

This trend should concern us all – the bar, the bench, lawmakers and the public at large, and commit us to an open dialogue about why this has happened and how to remedy the problem. Regardless of how one interprets our Constitution, the Founding Fathers never envisioned a judicial system in which the protections of a jury trial would be so totally stripped away from the kind of case that needs them the most.

A. Lee Parks is a senior partner at Parks, Chesin & Walbert, P.C. and Edward Buckley is a senior partner at Buckley & Klein, LLP. Both of these Atlanta based law firms specialize in employment discrimination litigation. The authors want to thank Tanya McAdams for her invaluable assistance in the preparation of this article.