A new book by U of T Mississauga assistant professor of sociology Ellen Berrey explores the legal outcomes of the most common type of civil litigation in the United States—employment discrimination claims—and the limitations of the law in addressing problems of workplace inequality.
In Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality, American Bar Association scholars and co-authors Ellen Berrey, Robert L. Nelson and Laura Beth Nielsen provide a comprehensive analysis of employment civil rights litigation in the U.S., and give voice to real plaintiffs in their pursuit of justice and defense of their fundamental civil rights.
“Civil rights law is enforced through litigation, and it is the primary option available for employees who believe they have been the target of discrimination,” Berrey says. “We wanted to know how well the process is serving the participants, including employees, management and attorneys.”
The researchers examined more than 1,700 randomly sampled cases filed in federal courts between 1988 and 2003, and conducted interviews with 100 individuals involved in cases, including plaintiffs’ attorneys, employer defendants and defense attorneys. The research considered reasons for discrimination claims and outcomes of the cases. “It’s the only study of its kind, at this scale, that provides both qualitative and quantitative data about how well the system of employment civil rights litigation works,” Berrey says.
The numbers are telling. “More than 93 per cent of federal cases are filed by single individuals who often have no legal experience,” Berrey says. The most common claims are based on perceived discrimination related to race, sex, age and disability. About 50 per cent of cases settle early in the process. Just six per cent of cases filed in federal court go to trial, and only a third of those—or, a tiny two per cent of cases filed in federal court—result in any kind of win for the plaintiff.
“Early settlements tend to be not a lot of money, averaging about $30,000, which means that there are a lot of settlements that are in the $5,000 to $10,000 range. That’s not enough to offset the legal costs, lost income, and the psychological toll that being a target of discrimination and then going through litigation can cause,” Berrey says. “The process puts an incredible burden on individual employees, who are responsible for initiating lawsuits. Yet we depend on them to ensure that workplace civil rights are being enforced.”
“We found that in many different ways civil rights law functions to reproduce the very inequalities it is supposed to be addressing,” Berrey says. “Settlements insulate the employer from having to make systematic change. They don’t have to admit any wrongdoing, or guarantee to the public to change anything about their workplace. This is the primary way that cases are being resolved, but it doesn’t mean that anything is being done to solve the problems.”
“It is important to understand this unfair expectation put on individuals who believe they’ve been targeted. We rely on them to carry the weight of enforcing civil rights. Hearing their voices, you understand the lived consequences of everyday discrimination and the deep flaws with the way we try to address it through litigation.”
“By bringing together quantitative figures with first-hand experiences from those who participate in the process, we provide a holistic view of workplace discrimination law in action,” Berrey says. “Despite the discouraging evidence, our findings provide inspiration that we can do better. Reforms could include increasing damages for plaintiffs, to create more incentive for attorneys to take discrimination cases, and a more aggressive role for the Equal Employment Opportunity Commission, the U.S. government agency that oversees these cases. The task of making workplaces more fair and more equal isn’t yet done.”
For more information about Rights on Trial and to hear audio recordings of the individuals interviewed, please visit rightsontrial.com. For more information on Berrey's research, please visit ellenberrey.com.
Assistant Professor of Sociology