We call your attention to a 1997 U.S. News and World Report magazine report in a section called "News You Can Use." Obviously U.S. News figures its readership is limited to employers.

The author feels obliged to comfort employers by debunking myths about overzealous, litigation-crazed employees, champing at the bit to bite the very hand that feeds them. There, there those troublesome resources of the human kind have more common sense than you (the rational, dispenser of capital and wisdom) have been led to believe. Hold this short article to the mirror for us workers to get the lessons from it. Here's a quick synopsis.

Employers shouldn't fret the EEOC. The "activist" (read pro-employee) years are long gone. There's been a steady decline in the number of class action suits against employers since 1976 when (an alltime high?) 1174 suits were filed. Now the anemic EEOC agency filed just 68 suits in 1996.

Nor should employers worry that the protective umbrella of "protected class" (sex, age, race, religion) is expanding and including virtually every employee. The courts (but don't call 'em activist) have actually narrowed the definition of protected groups.

For instance, age discrimination is expressly forbidden by the Age Discrimination in Employment Act. Theoretically, a worker cannot be terminated because of his or her age, if over 40. But in practice, a California Appeals court ruled in 1997 that an employer does not commit age discrimination if a group of older workers had to be terminated "for economic reasons." What business cannot rely on the "economic" knee-jerk response in the future. A precedent has been set.

How about those costly accommodations for the disabled? The Americans With Disabilities Act (ADA) was supposed to drive many large companies out of business. Remember? But it was found that Sears spent an average of only $45 per person in direct costs to adjust the workplace to meet the needs of 71 workers. Not a budget buster if done wisely!

Surely sexual harassment plagues employers like never before. Not really. A recent study by the University of Illinois found that despite huge efforts by women's groups to educate the public, few women who are harassed, according to the legal definition, recognize it when it's done to them. So, in fact, few report it and fewer still file a complaint!

It's a long way from wrongdoing through complaint and suit to employee victory. The number of people who actually file an EEOC complaint for discrimination of any kind is less than 6 in 10,000 employees.

Pre-trial settlements are expensive for employers. True the headline-grabbing amounts paid by Texaco ($176 million), Publix Markets ($80 million), Home Depot ($80+ million). But the statistical reality is that a methodical analysis of wrongful termination cases in California courts during a recent 7 year period resulted in the following: 17% were dropped, costing employers on the average less than $500; 40% were settled before a trial costing an average of $60,000 including attorneys' fees.

Furthermore, if the complaint goes to the EEOC and is federal, the administrative charges are usually less than $5,000 for employers. As with all types of complaints, most are settled before trial.

If plaintiff/employees persevere and have encouraging counsel, they might get a jury trial. According to conventional wisdom, juries can't wait to deliver knockout guilty verdicts and damage awards to punish big business. No, that, too, is another myth.

The 1991 Civil Rights Act made more possible both jury trials and punitive damages for discrimination. For the dozen years prior to the Act, just 24% of the cases went to a jury. Employees (plaintiffs) won 24% of the time. Between 1991 and 1995, the employee win rate creeped to 30% despite a doubling of the percentage of post-Act cases heard by juries.

Do the math. Employees 30, Employers 70. Who wins? Who has the right to whine? A most unsettling comparison is made by Theodore Eisenberg, a Cornell University law professor stating that "job discrimination cases remain one of the single most unsuccessful classes of litigation for plaintiffs. They settle less and lose more than almost anything else." The only class of complaints with a lower success rate is the ones filed by prisoners who mostly represent themselves.

OK, you say, but for the precious few employees who do go to trial by jury and win, juries nail employers. As always, headlines trick us into believing they represent the system and how it works. Dramatic awards like $50 million to a single WalMart employee are often drastically reduced on appeal. $50 million became $385,000.

The median jury award in sexual harassment cases is $100,050. The median award granted to those who claimed job discrimination in federal court was $100,000 in 1994, and part of a declining trend.

Since the author of the News You Can Use article pitched it to employers, she assumed an adversarial--us v. them--perspective. So, strictly from an employee's view, the litigation route to resolving harassment and discrimination problems at work looks bleak. As the employers are told to "not fret", employees should be forewarned about the hostile legal challenges facing them when they dare to complain.

Source:
Amy Saltzman. Suppose they sue? Why companies shouldn't fret so much about bias cases. In News You Can Use, U.S. News & World Report. Sept. 22, 1997.

No more searing an indictment of the corporate-dominated legal system can be found than in No Contest: Corporate Lawyers and the Perversion of Justice in America by Ralph Nader and Wesley J. Smith (Random House, 1996). The portrayal of corporations as "hapless victims of ordinary Americans bent on suing their way into prosperity" is carefully concocted and sustained with a corporate-financed propaganda blitz masquerading as "tort reform" or a desire to unclog congested courts. Read it and weep.