Judicial appointees are human beings, and it is no secret that some of them believe employment cases are the red-headed stepchild of civil litigation. We and others have discerned a judicial distaste for employment cases, probably due to a variety of factors, likely including the following: many employment cases are filed by attorneys who are not particularly experienced in the area of employment law – they pick cases with bad facts that probably don’t belong in litigation; employment cases usually don’t involve claims for millions of dollars in damages; a perception that at the end of the day, the only harm that occurred is the loss of a job; and a belief that regulation of an employer’s decision-making process interferes with operation of a free market.
Two recent studies argue that that there is, in fact, an observable bias against employment plaintiffs in federal court. Federal Court Bias Against Employment Plaintiffs and NELA Report – Judicial Hostility to Employment Plaintiffs examine various empirical data and find statistically significant higher rates of adverse outcomes against employment plaintiffs than in almost any other civil case filed in federal court. Alarmingly, researchers find a high correlation between a judge’s political party and their case decisions. See, for example, this recent article in the New York Times Review of Books by Cass Sunstein, one of the foremost scholars on the federal judicial system in the United States.
To be certain, many federal judges care deeply about making the right decisions. They work long hours and carry heavy case loads. They respect skillful lawyers on both sides of the aisle, and strive mightily to render impartial decisions based on the facts before the court and the controlling rules of law. These judges represent the best of the third branch of government. Nevertheless, the patterns discussed above are impossible to ignore. Pittsburgh employment lawyers and employment attorneys all over the United States must work together and with the judiciary to arrest these disturbing trends.