Home « Mediation, Employment, Civil Rights « Settling Employment Discrimination Lawsuits

Employment Mediation in the Twenty-First Century:
Challenges in a Changing Environment

See also Introduction, Section II, Section III, and Coda

1. Changes in the Workplace and Workplace Complaints: How They Undermine Litigation of Claims of Employment Discrimination

   1. Changes in the Workplace

   2. Changes in Workplace Complaints

   3. The Impact of Change on the Efficacy of Employment Civil Rights Litigation

   4. Suggested Reforms, Continued Litigation

A. Changes in the Workplace

rofessor Stone writes that the "old psychological contract" between employers and employees, "with its promise of long-term job security, orderly promotional opportunities, longevity-linked pay and benefits, and long-term pension vesting, encouraged worker attachment to the firm." [FN10] It also reflected, and perhaps encouraged, the companies' attachment to their workers.

For many employers, both paternalistic benevolence and shrewd self- interest counseled good treatment of employees--the human capital in which they had so heavily invested. In some companies, workers and managers could, without too much of a stretch, envision the firm as a daytime family. A young man--of course, the prevailing model was male--could sign-on after graduation from high school or college. With the years would come friendships and alliances that might well outlast a marriage; "divorcing" one's firm might seem, financially and emotionally, as drastic a move as divorcing one's spouse.

By the end of the twentieth century, however, business conditions had significantly altered. Globalization has broadened the field of competition, blurring the distinction between internal and external markets, forcing companies to pay ever greater attention to the bottom line. [FN11] In the face of ongoing technological change, qualities such as flexibility, adaptability, and capacity to lower short-term costs increasingly separate the "sheep from the goats" [FN12] of industry. [FN13] Fidelity to employees, however, has no similar effect on success.

In this environment, the lifetime employment paradigm has been replaced by "precarious employment." [FN14] Businesses hire growing numbers of "temps" and part-timers, who do not get benefits, and outsource erstwhile in-house tasks to various independent contractors. [FN15] For many employees in this new universe, changing jobs has become a routine or, at least, not uncommon, feature of life. Job-hopping can be a benign phenomenon where the worker voluntarily quits in order to pursue career advancement. But where the worker is terminated, stress and anxiety can be expected, especially if she is older. Such feelings are only enhanced by the current economic downturn and consequent scarcity of substitute positions.

The old world of employment also offered considerable opportunities to men who had a strong back rather than intellectual talents; the present one, though, affords few. The United States, like other developed nations, focuses not on production and assembly but instead on "knowledge and service work." [FN16] More than ever, a good brain and possession of skills, especially the skill of learning new skills, characterize the successful worker. Loyalty--staying put--does not.

In addition, the structure of many firms, and of the jobs within these firms, has been changing. An increasing number of companies reject the traditional hierarchical model of top-down decisionmaking and orderly progression along "job ladders," [FN17] embracing instead what Professor Stone calls "microlevel job control." [FN18] This regime entails a "flattening of management positions" and a concomitant "shift in authority to cross-functional work teams." [FN19] The members of such teams cooperate with each other in exercising power with respect to matters previously confined to supervisors, [FN20] such as pay, evaluation, promotion, and assignments. Accordingly, members wield considerable influence over the work life of their colleagues. [FN21] Organization along these lines is thought to enhance the firm's productivity and flexibility. [FN22] The emerging self-governance paradigm predictably stresses the values of teamwork and consensus. [FN23]

This transformation of the working environment has bred a "new psychological contract." [FN24] Instead of promising employment security, it offers "employability security." [FN25] This consists, among other things, of furnishing general skills training as well as networking opportunities. [FN26] These make the worker more marketable both inside and outside the firm. Portable capital is vital, of course, to an employee who expects to switch positions and companies a number of times in the course of her career. Being afforded the means to acquire it may, therefore, exceed in importance the precise amount of one's current salary.

All this being said, I emphasize that many businesses still follow traditional patterns. We should not overestimate the degree of change at the present time. What we have is evolution, not revolution, in the working world; some segments of the economy manifest it more than others. Yet neither should we underrate the significance of the post-modern firm's development. Its features represent the wave of, at least, the foreseeable future. Moreover, these features interact with changes in the most common complaints made by employees and increasingly cast doubt on the ability of litigation to resolve such claims satisfactorily.

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See also Introduction, Section II, Section III, and Coda

B. Changes in Workplace Complaints

mployee discontent arises from many different sources, not only (or even mainly) from biased employer behavior. Yet for a gripe to mature into a cause of action--and my focus at the moment is on litigation--it has to rest on a legal foundation. Typically, the worker who cannot get his employment dispute resolved in the workplace and, therefore, files an administrative charge or complaint in court must invoke one or more of the civil rights laws barring employer discrimination on grounds such as race, national origin, gender, or age. These include the Equal Pay Act of 1963, [FN27] Title VII of the Civil Rights Act of 1964, as amended (Title VII), [FN28] the Age Discrimination in Employment Act of 1967 (ADEA), [FN29] the Americans with Disabilities Act of 1990 (ADA), [FN30] and similar state [FN31] and local [FN32] provisions.

As background, it is crucial to note a major cause of these statutes' centrality in litigation by employees. Apart from the ban on discrimination noted above, non-unionized workers have only some general regulatory laws, such as the Fair Labor Standards Act of 1938 [FN33] and the Occupational Safety and Health Act of 1970, [FN34] and a few special purpose laws--for example, the Employment Retirement Income Security Act of 1974 (ERISA) [FN35]--to protect them. [FN36]

"At-will" employment prevails in every state but Montana. [FN37] Under this rule, of which most workers are unaware until trouble strikes, [FN38] an employer may fire an employee for any reason or no reason so long as it does not act on the basis of impermissible discrimination. [FN39] Not many non-union employees have the clout to negotiate for greater security: tenure except for dismissal for cause or, at minimum, a stated term of years. Moreover, given the progressive deunionization of the work force [FN40] (in 2000, collectively bargained contracts applied to just 13.5% of workers), [FN41] most employees hold their jobs solely at their employers' discretion. [FN42] Finally, termination aside, employers have always had free reign over whom to hire and how to run their organizations, subject again to the caveats for illegal bias-driven conduct and terms in union-management contracts.

In the early post-Civil Rights era, the concern was getting minority applicants a foot in the door; hence, litigation primarily targeted discriminatory failure-to-hire. [FN43] By the close of the twentieth century, the focus of litigation had switched from workplace entry to workplace exit as non-traditional employees--initially admitted, then booted out-- increasingly complained of terminations allegedly based on discrimination. [FN44] These employees have also protested non-promotion, lack of training, harassment by bosses or fellow workers, and other inequalities in the terms and conditions of employment. Commentators have dubbed such grievances "[s]econd-generation" complaints. [FN45] In light of the rise in job insecurity aggravated by hard times, and reflected in the new psychological contract, one can expect that this trend will continue and even intensify.

The second generation workplace yields many fewer instances of deliberate and blatant discrimination. [FN46] For example, except in certain blue-collar, sex-segregated industries, women and minorities rarely suffer total exclusion from the workplace. [FN47] Turndowns of qualified employees from protected groups who seek promotion, in favor of less (or no more) qualified male Caucasians, often seem due to simple cronyism rather than overt bias. [FN48] By the same token, we seldom encounter the "N-word" or other racial or ethnic slurs--and when we do, it is almost never at a mid-management or higher level. [FN49] Even much milder, "politically incorrect" speech is becoming relatively rare.

Anecdotal evidence drawn from my own mediation practice largely confirms these observations. Notably, of approximately sixty employment cases I have handled in the past five years, only one involved discrimination in hiring. A young African-American attorney, call him Derek, [FN50] seeking employment at a small law firm with no minority professional staff was ultimately rejected by the senior partner, Morris. The latter voiced suspicion at the fact that Derek had not received an offer from a larger firm, since "they love to hire tokens," and made other unambiguously biased remarks. Predictably, perhaps, the guilty individual belonged to an older generation (Morris was in his mid-seventies). In some sense, even this incident seems more second-generation than first: until quite recently, the dearth of minority law school graduates virtually precluded such litigation.

To be sure, one still hears horror stories. Recently, for instance, a jury awarded $3.3 million to a black trucker in Colorado who had been subjected to a racially hostile environment that included graffiti with swastikas, rope tied into hangman's nooses, and symbols of the Ku Klux Klan. [FN51] In another case, a rare illustration of flagrant racism by a highly positioned professional, a Caucasian administrator called an Indian chemist under his supervision a "brown nigger." [FN52] Some forms of sexual harassment, moreover, feature not just demeaning words or gross displays, like pinup calendars or pornography, but also unwelcome, assaultive touching. [FN53] Finally, it should be borne in mind that egregious cases yielding reported opinions underrepresent the actual number of such cases; the worst examples are more likely to settle early. [FN54]

Yet prevailing forms of bias tend much more than in earlier days to be subtle, complex, [FN55] and frequently unconscious, [FN56] reflecting a largely unspoken organizational culture. [FN57] No longer enduring wholesale exile from shop or office, women and other outgroup members now protest being "fr[ozen] . . . out of crucial social interactions." [FN58] They also complain of receiving less attractive work assignments, poorer training, harsher assessments of their capabilities, hyper-scrutiny of their performance, and non-acknowledgment of their achievements. [FN59]

Such below-the-radar forms of discrimination wreak special havoc in the new workplace, which puts a premium on acquisition of skills and relationships; [FN60] the harm can be especially severe where groups of employees possess meaningful decision making powers. [FN61] In this environment, if colleagues or immediate superiors regard a worker as not a genuine part of the team--because, for example, that person is female, foreign, dark-skinned, or "too old"--he or she will lose all sorts of tangible and intangible benefits that make labor more rewarding and turn a job into a career. Eventually, the worker may even be fired.

I have seen many illustrations of these kinds of problems in my practice. The reason, I believe, is that many non-cutting edge work settings, such as one's local bank, now demonstrate some of the features I have described. Consider, for instance, the case of Bill. While not the most zealous employee (he constantly counted the days to his retirement), Bill had, nevertheless, performed quite competently for forty years as an Assistant Vice President in one of the country's largest banks, XYZ. Recently, though, the company had changed while Bill had not.

From a stodgy dinosaur, rarely altering the way it delivered basic services at its branches, XYZ turned into an aggressive, "lean and mean" sales organization. Increasingly, XYZ stressed customer relations, teamwork, and competitiveness, values it never before touted at its sleepy neighborhood offices. Bill's newly hired manager, Lynn, a younger woman, used terms alien to him like "huddle," "team meeting," and "brainstorming session" to describe activities in which employees now had to take part. This business model disadvantaged Bill, somewhat of a loner, by placing a premium on interpersonal skills he lacked; his performance evaluations, predictably, nose-dived. Lynn wrote that Bill was failing to meet expectations in "[t]eamwork, [c]ustomer [i]nteraction, and [l]eadership" and had not contributed ideas in a "positive, enthusiastic manner." In short, she concluded, Bill was not a "real team player." [FN62] Eventually, the bank forced Bill to retire.

The point of this story is not that organizations have never before emphasized qualities like cooperation and sociability, nor that the somewhat curmudgeonly Bill had formerly been an ideal employee. Rather, the issue is one of degree: his personality defects simply mattered more in the new workplace. Also, to an unmeasurable extent, the very fact of being older had marginalized him. Bill's uniformly younger cohorts as well as his boss felt they had little in common with him. Employees who lunch together and share gossip during their breaks find it easier to bond in their work life. After the mediation, I wondered if the age gap between Bill and his colleagues had predisposed the latter to view him as an outsider: Who had excluded whom first? was a difficult question. Yet, regardless, the bottom line was the same: Bill no longer fit the XYZ profile and, therefore, he had to go.

"Subtle patterns of non-interaction or exclusion," [FN63] such as those I have described, combine with the blurring of lines of authority in many companies to make it hard for outgroup members to acquire influential positions in the twenty-first century workplace. [FN64] "[I]nformal and invisible power structures" have become more salient; but absent "orderly job ladders," [FN65] an employee who wishes to complain about a lack of advancement in the new environment may be unsure what exactly constitutes promotion and whether she actually has been denied one [FN66]--let alone because of bias.

In addition, the very success of the second generation in gaining white-collar and (sometimes) higher-echelon employment has led to complaints by minorities and women that they are getting unfairly negative performance reviews, based on overly subjective criteria. [FN67] It is, indeed, easier to count the number of widgets an assembly-line worker produces than to assess an employee's "output" of satisfied customers, or useful suggestions, or to weigh her contribution to a team effort. [FN68] Thus, in handling claims of unlawful discharge, I frequently encounter nebulous defenses: the plaintiff evinced "personality problems," made associates or management uncomfortable, was bad-tempered or excessively aloof. These boil down to management's current catchall censure: the employee has poor interpersonal skills. Such hard-to-counter criticism is directed most often at workers of different cultural backgrounds--stereotypic "standoffish" Asians, "touchy" Caribbeans--or at women, who are held to higher standards of niceness. [FN69] The application of "soft" criteria can easily mask discrimination.

Having examined changes in the work environment and in job-related complaints, I turn now to the repercussions of these phenomena on the employee's ability to obtain redress for adverse action that allegedly stems from unlawful bias. As we shall see, the complainant's litigation path is increasingly strewn with obstacles.

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C. The Impact of Change on the Efficacy of Employment Civil Rights Litigation

s suggested above, with reference to claims of denial of promotion, the worker in the second-generation world may routinely have trouble determining whether to attribute his problems to discrimination. The line between subtle or unconscious bias and mere bad management, miscommunication, insensitivity, or "equal opportunity" nastiness is often indiscernible. [FN70] As a co-worker said of the white boss of one of my African-American complainants: "Barbara just wasn't a nice person; that's what it boils down to." Current sources of workplace friction may also relate to economic and class issues beyond the purview of statutory bans. [FN71]

Although the affected employee doubtless suffers regardless of how one characterizes the source of his or her difficulties, [FN72] labels matter. If a complaint cannot be couched in terms of bias, the worker will usually have no remedy. Title VII and similar laws do not enact a "generalized code of workplace civility." [FN73] Further, even if the employee decides to claim discrimination (whether sincerely or in an effort to shoehorn her problems into a recognized legal category), she may find it hard to persuade a decisionmaker (judge, jury, or agency official) of the accuracy of her designation.

Prevailing on employment discrimination complaints is generally tough; more than ninety-five percent of them fall under the rubric of *499 "disparate treatment." [FN74] In order to make out a cause of action, the plaintiff must demonstrate that the employer treated the employee--because of his protected trait--worse than other workers who did not possess that characteristic; in other words, he must show an intent to discriminate. [FN75] If, as is usual, he has no direct evidence of biased motivation, he must satisfy the so-called McDonnell Douglas schema. [FN76] This requires the plaintiff to meet the preliminary burden of establishing a prima facie case of discrimination. [FN77] That being done, the burden of production shifts to the employer to rebut the presumption of discrimination by articulating--not proving--"some legitimate, nondiscriminatory reason" for its conduct, [FN78] a light burden virtually any employer can satisfy. The onus then shifts back to the plaintiff, who bears the ultimate burden of persuading the finder of fact that prohibited bias caused his discharge or other adverse job action--in other words, that the defendant's explanation is pretextual. [FN79] This can be a daunting task. [FN80]

In addition to doctrinal hurdles, workers alleging discrimination encounter a number of practical problems. [FN81] For example, in my experience employers in general receive better, or at least more consistent, representation. Indeed, the would-be plaintiff may have trouble hiring any lawyer. [FN82] Without one, and facing the defendant's counsel, the worker stands virtually no chance of victory. [FN83]

Most employees cannot afford, as can their opponents, to pay an attorney by the hour. Thus, the plaintiff must locate a lawyer willing (perhaps, with a small retainer) to take his case on a contingent fee basis and "front" the expenses of litigation. The lawyer, in turn, must rate the likelihood of success, a sizeable judgment, and statutory attorneys' fees as high enough to justify the investment of her time and money. To be sure, some attorneys gamble on dubious claims, but ordinarily, those who do aim to dispose of the matter quickly, for nuisance value, leaving the client with only two-thirds of an already paltry sum.

If the employer resists settlement and the plaintiff's lawyer decides not to incur the costs of thorough discovery, the suit will probably be dismissed. For discovery is, on the whole, more crucial to the complainant than the defendant. The latter usually employs most of the potential witnesses for both sides; it also possesses all or most of the relevant documents. [FN84] Therefore, at the very least, the defendant can assess the strength of its position before much formal disclosure takes place.

The employer enjoys other strategic advantages, too. Supervisory employees will almost always back up the company. The same is true of the plaintiff's co-workers: few employees still on the job will take the risk of supporting a colleague who is often long-since gone. Moreover, advised by counsel specialized in handling discrimination claims, as well as by Human Resources staff, many employers build an elaborate paper trail (for example, of an employee's errors) for use in the increasingly common event of litigation. Most employees are less than perfect; savvy bosses can create a "plausible record" to cover unlawful motivation. [FN85]

Finally, employers--as defendants and corporate litigants--generally profit from delay, endemic in an age of teeming court and agency dockets. [FN86] The individual plaintiff, by contrast, normally finds waiting stressful, at times so much so that he or she will settle for a pittance in order to avoid further frustration. This step may be very tempting to ex-employees who, out-of-work or underemployed, are feeling the immediate financial pinch of a lost salary and other benefits.

In short, the worker who would sue his employer, past or present, embarks on a fairly perilous venture. Brief reflection will reveal, moreover, that this assessment applies in spades to typical second-generation complaints.

As we have seen, these rarely yield a "smoking gun." Hence, the employee must run the McDonnell Douglas course and hope that circumstantial evidence of biased motives will overcome the company's usually reasonable-sounding explanation for its conduct. And where prejudice is unconscious, the employee will not be aided by evidence of lies or coverups on the employer's part. In these circumstances, judges and jurors understandably find it hard to detect a boundary between unknowing and nonexistent discrimination--particularly as they, too, may harbor negative stereotypic views of persons in the plaintiff's group. [FN87]

Further, to the extent that current complaints allege co-worker harassment (nowadays, often, the most severe type of discrimination), [FN88] the defendant will escape liability unless the plaintiff can prove that management either knew or should have known of the offensive behavior and, nevertheless, failed to take swift and effective measures to stop it. [FN89] Such knowledge may be difficult to show when employees subtly exclude minorities, women, or others in disfavored classes, thereby denying them access to the networks and team participation so vital to success in the current workplace. This is especially true if the members of the majority do not realize what they are doing. [FN90]

Some special hazards that second-generation plaintiffs face in prosecuting age discrimination claims also bear mention. ADEA complaints, for example, frequently follow in the wake of layoffs--all too common in the present economy. The "RIF'd" employee (RIF stands for "reduction in force") will not ordinarily succeed in proving invidious intent [FN91] in the context of a mass downsizing unless the employer heavy-handedly targets only older workers while retaining similarly situated younger workers, or otherwise revealing biased motivation.

In addition, allegedly ageist comments made at the job site are apt to be viewed as, at worst, ambiguous on the issue of intent. Questions concerning the retirement plans of a worker of 60 or observations that he "is beginning to slow down," "is unwilling to change," or "has not kept up with the times" [FN92]--especially when stray, [FN93] as opposed to incessant--do not necessarily imply prejudice against the old, as racial or misogynistic slurs clearly connote hostility toward people of color or women. Rather, they straddle a blurry line between judgments about an employee's performance, which are permitted, and assumptions based on age, which are not. [FN94] At a time when learning new skills is more important than ever before, older workers may, in fact, become less useful to their employers (become "deskilled") as evolving technologies and other novelties strain their capacities to learn and adapt.

Given the problems of redressing discriminatory conduct in the second-generation workplace, critics of the present state of affairs have called for reforms. Meanwhile, however, aggrieved employees resort to administrative agencies and courts in record numbers to pursue their claims under current law.

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D. Suggested Reforms, Continued Litigation

ome pro-plaintiff commentators urge repeal of the onerous requirement of proof of discriminatory intent in cases alleging disparate treatment. [FN95] But regardless of its merits (as to which I take no position), [FN96] this recommendation is highly unlikely to be adopted. Numerous decisions enshrine the prevailing law in this area. [FN97] As for Congress, it responds to public opinion--which lacks the desire to weight the scales more heavily toward the employee. Indeed, if anything, the tide has turned in the opposite direction, with many people believing that we have gone too far in defending the rights of statutorily protected groups. [FN98] Similarly, proposals to force--or even permit--employers to make more aggressive efforts to advance the prospects of women and minorities fly in the face of current judicial [FN99] and popular [FN100] sentiment hostile to broad affirmative action.

As an alternative to scrapping intent as an element of disparate-treatment claims, some scholars have urged an expanded definition of the concept to encompass unconscious discrimination. Professor Ann C. McGinley, for example, advocates that the requisite state of mind be found when the defendant has knowledge or reason to know that its conduct was *504 biased, consciously or unconsciously. [FN101] Although well-meant, this approach is extremely impractical: how would the plaintiff prove the existence of this mentality? It is often difficult enough to establish deliberate discrimination. To be sure, experts can testify that much prejudice nowadays does not rise to a conscious level; considerable research supports this conclusion. [FN102] But how can one reliably show, except perhaps in cases of flagrant stereotyping, [FN103] that the particular employer in question acted, in effect, on the basis of unintentional bias? In my view, such a reformulation of the intent requirement would do little for the plaintiffs who need help the most--those caught up in the ambiguities of typical second-generation disputes. [FN104]

Different scholars go beyond doctrinal tinkering, arguing for a fundamental change in emphasis from the "search for bigots to the impact of workplace structures and processes on female and minority employees." [FN105] They offer provocative analyses of problems in the job environment--among other things, recommending solutions that supplement civil rights litigation.

Professor Sturm, for instance, contends: "[I]t becomes necessary to experiment with structural approaches to legal intervention that focus on systems of decision making and explicitly employ organizational incentives and non-legal actors in the project of creating lawful, inclusionary practices within institutions." [FN106] She provides several examples of firms that have restructured themselves in various ways, such as revamping their systems for hiring, promotion, and training, as did Home Depot, in order to eliminate former practices that gave an edge to white males. [FN107] Professor Vicki Schultz, another scholarly critic of the status quo, makes yet more sweeping proposals. Dealing mainly with gender issues, against the backdrop of job insecurity in the emergent global marketplace, Schultz sets forth an ambitious agenda of "measures like job-creation programs, . . . enhanced employee representation, and a reduced workweek for everyone." [FN108]

Much of this conceptual writing amounts to a general blueprint for regulation of the twenty-first century workplace; more detailed discussion of it exceeds the scope of the present article. I wish to focus on improving the handling of employment disputes within the existing legal framework. I believe, however, that my recommendations, set out below, are consistent with the structural approach.

As I previously stated, the majority of plaintiffs who mount litigation against their employer confront rather bleak prospects. Many claims will fail to survive summary judgment [FN109] or settle for mere nuisance value. [FN110] The few suits that do make it to judgment after trial-- approximately five percent or less of the total brought [FN111]--yield little improvement in results for workers. A recent U.S. Equal Employment Opportunity Commission (EEOC) study revealed that plaintiffs represented by private attorneys, as opposed to agency lawyers, enjoyed a success rate of merely twenty-seven percent; on appeal, the figure was sixteen percent. [FN112]

Despite these discouraging results, the number of job discrimination actions rose continuously throughout the seventies, eighties, [FN113] and nineties. [FN114] Such filings increased 2,000% in federal court in the past two decades, while the overall docket grew a relatively meager 125%. [FN115] Agency filings have likewise been climbing: at the EEOC, 84,442 were logged in FY 2002--up from 72,302 in FY 1992. [FN116] At the same time, state administrative charges have mounted. [FN117]

This pattern has prompted much speculation concerning its cause. Professor John J. Donohue, a close student of the matter, believes that the burgeoning of these lawsuits is not significantly due to factors like the growth in the number of lawyers or any rise in discrimination. [FN118] Instead, he attributes the 1970-1989 increase in large part to a parallel increase in unemployment. [FN119] Further, he cites the expansion in covered employees by legal changes such as the passage of the ADEA [FN120] in 1967 and the 1972 amendments to Title VII [FN121] as instigators of litigation. [FN122] The later enactment of the ADA [FN123] in 1990 and the Civil Rights Act of 1991 (CRA) [FN124]--which, for the first time, allowed Title VII [FN125] and ADA [FN126] plaintiffs to recover not only lost pay but also compensatory and punitive damages--probably had a similar effect. [FN127]

With respect to possible additional causes, Donohue theorizes: "Improvements in the workplace have spawned strife in the courtroom." [FN128] Insofar as the anti-discrimination laws have fulfilled their aim of enhancing opportunities for women and minorities in the work force, better jobs have made it more "worthwhile to sue." [FN129] Donohue's thesis supports the point I made in connection with the story of Derek, the African-American would-be associate turned down by a white law firm: [FN130] only now, in the second *507 generation, have more than a handful of people of color possessed the credentials to apply for good professional positions as well as the incentive to try to obtain legal redress, if rejected or otherwise harmed by reason of employer bias.

Finally, I note my own speculation that outsized verdicts [FN131]-- very rare but much ballyhooed--have continued to attract a disproportionate number of plaintiffs. Yet attorneys, if not their clients, should know the less publicized fact that giant recoveries are vulnerable to substantial reductions on remittitur. [FN132] I can merely add the conjecture that hope springs eternal, in the hearts of both lay persons and lawyers, and that, therefore, a poor prognosis does not deter as many lawsuits as rational analysis might predict.

Whatever the causes might be, however, the proliferation of employment discrimination actions has had some untoward consequences. Since these have manifested themselves in the mediation setting, I will discuss them in that connection. The rest of this article will treat the subject of employer-employee mediation: its considerable benefits, as compared to litigation, and aspects that could stand improvement.

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See also Introduction, Section II, Section III, and Coda