Employment Discrimination Plaintiffs in the District of Maryland

Charles A. Brown

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I. Introduction

Research into employment discrimination litigation intensified in the early 1990s as such litigation began to account for an increasingly large part of the federal docket.  Employment discrimination cases rose as a percentage of the federal docket until reaching a peak of about 10% in 2001.  Since then, this category of litigation has dropped both in absolute numbers and as a percentage of the federal docket.  Currently, it accounts for roughly 6% of the federal docket, behind only two other categories of litigation: product liability cases and habeas corpus petitions.

Initially, researchers and commentators were mostly concerned about whether the increasing volume of employment discrimination litigation created an undue burden on federal courts.  More recently, concern has shifted to the ability of employment discrimination plaintiffs to obtain favorable outcomes in court and through settlement.

Settlement is the most common successful outcome for plaintiffs, but definitions of settlement vary considerably from study to study.  Any researcher interested in plaintiff success rates must be careful to ensure that the final dispositions coded as settlements reflect plaintiff victories and not merely nonadjudicated terminations, i.e. cases resolved in any form other than a contested judgment.  This requires articulating exactly which final dispositions to include in both the numerator and the denominator of the settlement rate.

This empirical study aims to broaden and deepen our understanding of employment discrimination litigation.  It broadens our understanding by replicating, in a different federal district, Theodore Eisenberg and Charlotte Lanvers’s 2009 study, which established a framework for measuring the settlement rate as a proxy for plaintiff success and explored settlement rates for a variety of types of litigation.1  By replicating the Eisenberg–Lanvers study in the narrower context of employment discrimination in the United States District Court for the District of Maryland, this study demonstrates the degree to which settlement rates by type of litigation—specifically, tort, contract, or employment discrimination—can vary within and across districts.  This study deepens our understanding by examining the demographic features of employment discrimination plaintiffs and investigating plaintiffs’ ability to achieve successful outcomes before different judges, although I do not discuss these findings in this abbreviated editorial.

II. Prior Research on Employment Discrimination

During the 1990s, the variety of employment discrimination cases increased across multiple dimensions as Congress recognized new types of claims.  However, as statutory protection of employee civil rights expanded, the Supreme Court and federal appellate courts shortened the reach of employment discrimination laws.  As Congress and the Supreme Court sparred over the extent of protection to extend to employment discrimination plaintiffs, members of the employment defense bar and conservative commentators argued with social scientists over whether employment discrimination claims were creating an undue burden on the federal courts and whether the new laws were creating windfalls for plaintiffs.

Researchers in this area often analyze litigation in terms of a pyramid of disputes.  Using this rubric, Kevin Clermont and Stewart Schwab take an ominous view of the recent downturn in employment discrimination litigation.  They suggest that plaintiffs and their attorneys are becoming increasingly discouraged by the realization that they have “a tough row to hoe” in federal court.2  They posit that federal courts may be more hostile to employment discrimination plaintiffs and observe that the steepest declines in filed cases occurred in federal circuits that plaintiffs’ attorneys have identified as most hostile to employment discrimination plaintiffs.

They base their conclusion on their analysis of events at the very top of the pyramid: plaintiff success rates before trial, at trial, and on appeal.  They reject the intuitive view that employment discrimination plaintiffs suffer higher rates of defeat in federal court because they are overly litigious and bring weak cases.  Rather, Clermont and Schwab claim that the unique vulnerability of victorious plaintiffs to reversal on appeal demonstrates that federal appellate courts are biased against employment discrimination plaintiffs.  They further argue that this hostility likely explains the lower success rates of employment discrimination plaintiffs in district court before and during trial.

Although the scope of Clermont and Schwab’s study—virtually every terminated case in the U.S. District Courts from 1979 to 2006 and in the U.S. Courts of Appeals from 1970 to 2009—is unparalleled, it relies on problematic data assembled by the Administrative Office of the U.S. Courts (AO) and the Federal Judicial Center and cannot achieve the level of detail obtainable from direct examination of court records.  These limitations do not seriously undermine the veracity of Clermont and Schwab’s conclusions regarding pretrial motions, trial adjudications, and appeals; they do, however, prevent Clermont and Schwab from addressing other questions about how employment discrimination plaintiffs fare in federal court, particularly with regard to settlements.

III. Prior Research on Settlement Rates

The federal court data assembled by the AO is “[b]y far the most prominent” database used by legal researchers for statistical analysis of litigation.  Although this claim may be an exaggeration, the AO database is undoubtedly one of the most popular, likely because of its completeness.  Ostensibly, the AO database includes every case filed in federal court; because clerks enter cases upon both filing and termination, permitting reconciliation of case filings, the AO database includes a built-in check to ensure completeness.  Because the purpose of the database is to allocate limited resources within the federal court system, variables in the database that are useful for tracking court workload and assigning resources are highly reliable.

Nevertheless, the purpose of the database gives rise to several limitations for analyzing case outcomes.  If the purpose for calculating the settlement rate is to assess plaintiff success rates, then relying exclusively on the AO case disposition code is especially risky.  For example, the AO code “Dismissals: settled” is an underinclusive proxy for plaintiff success because several other AO disposition codes reflect settlements.  Additionally, the AO disposition codes do not distinguish between dismissals with prejudice and dismissals without prejudice.  This failure can be problematic because often settlement should be inferred in the former case, but not the latter.  Currently, the only sufficient way to accurately measure the settlement rate as a proxy for plaintiff success is to resort to the actual court records.

IV. Data and Methods

The present study uses data from docket reports, complaints, and other court documents from cases that terminated in both divisions of the United States District Court for the District of Maryland between October 1, 2007, and September 30, 2008.  The data in this study are more contemporary than the data in the Eisenberg–Lanvers study and provide a more recent, if narrower, picture of employment discrimination litigation in federal district court.  However, the divergence in both time and district complicates comparisons with the Eisenberg–Lanvers study because any differences may be due to either of these independent variables or the interaction of both of them.

I began by obtaining a list of cases that terminated in the District of Maryland during the study period from the AO database.  I sorted that data set by case category and then collected docket reports and complaints from Public Access to Court Electronic Records (PACER) for the following three categories of cases: employment discrimination (AO case category code 442), contract (AO case category 190), and personal-injury tort (AO case category codes 310–68).  The final sample includes every employment discrimination and contract case that terminated during the study period and a random sample of roughly half of the personal‑injury tort cases that terminated during the same period.  I collected further data directly from court records obtained through PACER and combined them with the docket numbers and case category information obtained from the AO database.  The most difficult part of data collection was coding case outcomes based on docket information.

V. Results & Discussion

These new data on settlement rates suggest an even more complicated picture of employment discrimination litigation.  Prior research on employment discrimination has tended to show that employment discrimination plaintiffs fare worse than other kinds of plaintiffs.  Although the results of this study corroborate this finding, they also uncover substantial interdistrict and/or temporal differences in the settlement rate for employment discrimination cases.

The relationship between the settlement rates for each of the three case categories varies from district to district.  In the District of Maryland, personal-injury tort cases have the highest settlement rate, followed by contract and employment discrimination cases respectively.  Moreover, the differences between the settlement rates for employment discrimination cases and the other two types of cases are statistically significant.  The difference between the settlement rate for contract cases and tort cases is also significant.

In the Eastern District of Pennsylvania, tort cases continue to have the highest settlement rate, but the difference between the settlement rates for tort cases and employment discrimination cases is not statistically significant.  Contract cases in the Eastern District of Pennsylvania have the lowest settlement rate of the three categories, and the differences between the settlement rates for contract cases and the other two categories are significant.

Finally, in the Northern District of Georgia, contract cases have the highest settlement rate followed by tort and then employment discrimination cases.  However, only the difference between the settlement rates for contract and employment discrimination cases is statistically significant.  The differences between contract and tort cases and between tort and employment discrimination cases are not significant.

The settlement rate for employment discrimination cases also varies significantly between the three districts.  The settlement rate for employment discrimination cases is lowest in Maryland and highest in the Eastern District of Pennsylvania, which generally has high settlement rates.  Indeed, Eisenberg and Lanvers found that the Eastern District has a high settlement rate for employment discrimination cases relative to other districts in the Third Circuit.3  These interdistrict variations are intriguing but hard to explain.

Indeed, the chief contribution of this study is to demonstrate the wide divergence in settlement rates by case category and district.  Although I speculate about some explanations for this divergence, drawing firm conclusions about the cause of the divergence from the existing research would be a mistake.  Because settlement rates vary widely across and within case categories and districts, it is unlikely that a single variable explains the divergence, and strong conclusions will only arrive after much more data is collected using a uniform methodology and with an eye to testing specific hypotheses.

One possible explanation is that the differences in employment discrimination settlement rates are due to different mixtures of classes of employment discrimination cases within each district.  However, neither the Eisenberg–Lanvers study nor this study found any significant differences in settlement rates between types of employment discrimination cases.  Future researchers should, nevertheless, continue to explore this as a determinant of interdistrict variation because sample sizes in this study were too small to draw definite conclusions.

If the lower settlement rate for employment discrimination cases in the District of Maryland is a result of the difference in time, rather than geography, then two causal factors might be at work: either employment discrimination plaintiffs are not responding to their lack of success by bringing stronger cases, or anti-plaintiff bias in federal district courts is actually increasing.  This conclusion would tend to undermine Clermont and Schwab’s discouragement hypothesis.  Of course, longitudinal data is necessary to demonstrate that the variation in settlement rates is a result of the difference in time and to rule out geographical differences as an explanation.  Because this study raises the specter that things might be getting worse for employment discrimination plaintiffs in federal court, it indicates the urgency for further research to explain the observed interdistrict variation.

Turning to the differences between the settlement rates for employment discrimination cases generally and other categories of cases, one unique feature of employment discrimination litigation may help explain the variation between employment discrimination cases and other types of litigation at the district court level.  The pyramid of disputes for employment discrimination litigation contains a level that other types of litigation typically do not: the EEOC.  Claimants who file at the EEOC can obtain favorable, settlement-type resolutions.  Based on nationwide data, Nielsen and Nelson estimate that about one in five EEOC complainants receive some sort of relief from the EEOC, while more than 63% of complainants may continue to pursue their claim in federal court.4  Because these complainants would otherwise begin by filing directly with the federal district court, the EEOC may divert cases that would settle at the district court from the pyramid of disputes before they reach the court.  Furthermore, pro se plaintiffs who unwittingly file first in district court without exhausting their administrative remedies may raise the rate of summary judgment for employment discrimination cases and therefore lower the settlement rate.  This hypothesis could help to explain the relatively low success rates of employment discrimination plaintiffs early in litigation.

Of course, this hypothesis requires further empirical support.  In fact, the opposite conclusion might be true; because complainants who do not prevail at the EEOC may abandon their claims at that stage of the pyramid, the EEOC may actually increase the proportion of plaintiffs with successful complaints at the district court level.  Moreover, even if the EEOC effect is a wash and does not discourage or encourage plaintiffs to continue to court, district court judges may carry preconceptions about its effect, leading them to prejudge cases as nonmeritorious.

As I noted earlier, the chief contribution of this study is to explore variations in settlement rates by case category and district.    While I have speculated about some explanations for these variations, further evidence is necessary to confirm or refute their relevance.  Furthermore, the explanations I discuss here are only a subset of those that I consider in the full study, and the explanations I consider in the full study are certainly not exhaustive but suggest the complexity of an issue that is ripe for further research.


Charles A. Brown is a graduate of Cornell Law School.

This Editorial is based on his Note, Charles A. Brown, Employment Discrimination Plaintiffs in the District of Maryland, 96 CORNELL L. REV. 1247 (2011).

  1. See generally Theodore Eisenberg & Charlotte Lanvers, What Is the Settlement Rate and Why Should We Care?, 6 J. EMPRICIAL LEGAL STUD. 111 (2009).
  2. Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 HARV. L. & POL’Y REV. 103, 121 (2009).
  3. See Eisenberg & Lanvers, supra note 1, at 142.  To reach this conclusion, the authors relied on AO data, reasoning that relative settlement rates would remain roughly stable even if individual actual settlement rates change.
  4. See Laura Beth Nielson & Robert L. Nelson, Rights Realized?  An Empirical Analysis of Employment Discrimination Litigation as a Claiming System, 2005 WIS. L. REV. 663, 705.

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