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Book Review
RIGHTS ON TRIAL: How Workplace Discrimination Law Perpetuates Inequality

(The University of Chicago Press, 2017)
Authors: Ellen Berrey, Robert L. Nelson and Laura Beth Nielsen

NYSBA Labor and Employment Law Journal
Spring 2018 | Vol. 43 | No. 1

f I had a friend whom I wished to discourage from suing her past or present employer for discrimination, I would urge her to read Rights on Trial.<1> A better antidote to litigation romanticism<2> in this domain would be hard to find.

It is no secret to anyone knowledgeable in the field that employment plaintiffs have a very difficult row to hoe,<3> and the authors replow this familiar terrain in depth. Yet their analysis goes much further. As opposed to many other academic writers in the field who tend to focus on implicit bias and structural deficiencies, they posit that conscious, even blatant, prejudice continues to pervade the workplace. No less disturbing is their overriding thesis, aptly signaled by the volume’s subtitle, which they have dubbed the central paradox of antidiscrimination law: far from dismantling barriers to equal employment opportunity, it perpetuates inequality even as it purports to remedy it.<4> That is so even though all of the involved parties share a commitment to the ideal of civil rights (or, in any event, talk the talk).

Having issued this stinging indictment, like prosecutors they amass their evidence in support. It derives mainly from a mixed-methodology study of a random sample of employment civil rights cases filed in seven geographically diverse federal courts<5> from 1988-2003. The team of authors supplements these data with 100 far-reaching interviews of plaintiffs, defendants and counsel, most of which were recorded and can be listened to on the book’s web site. The addition of literally human voices to what might otherwise have been a dry statistical compendium enlivens and enriches the reader’s experience. Conversely, the anchor of hard facts lessens the risk that the book’s conclusions were heavily skewed by sample bias introduced by an interview response rate of only 51 percent. The combined numbers-and-narrative approach makes for generally easy reading by varied audiences, marred only occasionally by the intrusion of sociologese<6> and superfluous repetition of points.

Much of the picture drawn by this comprehensive analysis will not surprise my litigator and neutral colleagues, as opposed to my hypothetical friend. As previously noted, ROT rehearses the many daunting challenges that plaintiffs confront. Already injured by their negative experience on the job (typically, ending in termination), which originally spurred them to seek relief, these ex-employees often undergo physical and emotional problems, financial hardship, and marital discord. Such stresses may lead to drug or alcohol abuse that only aggravates the situation. They have difficulties getting and paying for counsel, with whom they typically have worse relations than employers do with their attorneys. They suffer betrayal by former co-workers who fail to support them or, even worse, testify, and (in their view), lie on behalf of the company. Adding insult to injury, the game is rarely worth the candle. Most employees feel pressured to accept what they regard as inadequate settlements,<7> but if they hold out, they are likely to incur pre-trial dismissal or defeat at trial. Among other things, the authors found that plaintiffs lose on summary judgment 57 percent of the time; of the few tried cases (only 2 percent of total filings), they prevail on a mere 33 percent.<8>

Even those few who objectively win may feel that they lost. Consider, for example, the case of Sam Grayson, a successful policeman who started to endure mysterious, debilitating physical symptoms. After Grayson had exhausted his sick and vacation time, the city, unwilling to continue to pay him or furnish health benefits, refused to grant him light duty. Unable to pay his living expenses and his mortgage, he was forced to resign in order to access the $20,000 in his pension fund. Eventually his law-suit settled for $100,000, well above the median amount. Nonetheless, he stated in his interview: “I didn’t want the money. I wanted my job back.” In hindsight, Grayson was unsure he would do the lawsuit again. “It’s just that, personally, it took its toll on my life.”<9> Not only did he not obtain reinstatement, he also had to work in a different field for much less money and was forced to declare bankruptcy. Further, he believed that the city had behaved dishonestly during the litigation. He, thus, experienced dissatisfaction with both the result and the process: a putative winner, he still regarded himself as a loser.

In addition to fleshing out through stories the facts known at least to insiders about employment rights litigation, ROT recounts some less available data. For instance, I was unaware (though not exactly shocked to learn) that African-Americans were much less likely than whites to have lawyers: of the pro se litigants in the case sample, 75 percent were black. Not content with simply setting out the numbers, the authors commendably try to tease out the possible grounds for this racial effect: lack of information or connections, financial costs, distrust of (mainly Caucasian) attorneys, and the potential for lawyer bias in screening and selecting clients. They conclude, sadly, by noting the irony that those most affected by discrimination may be the least likely to have the resources to mount effective challenges in court predictably, the unrepresented fare dramatically worse than the counseled.<10> ROT also documents how much of a positive difference collective action makes to employees and the resulting negative influence of the tiny number of group actions. Ninety-three percent of claims are mounted by a single plaintiff; the same percentage allege only disparate treatment claims rather than advancing broader-based disparate impact charges. The EEOC, moreover, brought only 57 systemic cases in 2014. To be sure, one would surmise that banding together aids plaintiffs. Yet the degree of value added by doing so may surprise others (as it did me). It raised the chances of winning at trial from three in ten to 50-50. ROT’s detailed treatment of these topics amply documents the authors’ conclusion that “[by] far the most significant effects on outcome are legal representation and collective legal mobilization.”<11>

On a meta-level, the book describes how employment law and practice perpetuate on-the-job inequality while nominally seeking to redress it.<12> According to the authors, a law’s capacity to disrupt illegitimate workplace hierarchies is undermined by three intertwined factors, all of which tend to disadvantage plaintiffs relative to employers and attorneys: structural asymmetries in power in workplaces and the courts; the adversarial nature of the conflict; and the individualization of the dispute.<13> At the outset of litigation, employees articulate three goals: “compensation, vindication, and organizational change.” “[E]mployers have parallel, if reversed, goals: they pursue cost avoidance ... , vindication, and preservation of organizational patterns without legally mandated change.”<14> The typical sole, discharged and impecunious worker is much worse positioned than his former employer to realize these aims.

While I have already rehearsed many of the reasons for this imbalance, one phenomenon, which both causes and enhances the parties’ mutual rancor — thereby fueling legal hostilities that differentially harm plaintiffs — deserves specific mention here. That is the role of stereotypes of members of protected groups. ROT gives useful, detailed illustrations of these. A non-exhaustive listing includes images of blacks as “uppity, lazy or stupid, dangerous or violent (for males) and bitchy (for women)”;<15> and of people with disabilities as “faking it or not really disabled, unable to work, and abnormal.”<16> The authors make a persuasive case that such stereotypes prevail in the workplace and are reinforced in litigation, the latter through a dynamic process involving both employers’ and legal actors’ active reliance on them and the legal system’s neglect when it fails to address or remediate them.<17> Who among us is so pure that we have never, even unconsciously, relied on invidious group labels? ROT performs a service by stressing the ubiquity of this problem, even in the area of law and practice most taxed with its eradication.

Two final points. First, while the writers strive to be fair and evenhanded, they concededly  “foreground plaintiffs’ perspectives.”<18> And although they disclaim the ability, based on their data, to judge the merits of particular cases, some might view the book as biased toward employees. If nothing else, the authors never really explain what they mean by terms like illegitimate workplace hierarchies.<19> For instance, certain of their comments imply that they regard white male predominance in company management as a key delegitimating factor. My own take is that irrespective of whether one leans pro-employer or pro-employee, ROT’s empirical findings and personal narratives make the book well worth reading. Those who dislike its perceived slant can ignore that and focus on the useful factual content.

Second, like many systemic critiques, ROT does much better at describing the disease than prescribing a cure. The kinds of approaches proposed as fixes for the problems presented  include subsidizing civil representation, increasing funding for the EEOC, more broadly publicizing data on workplace inequality, enlarging the number of collective cases, revitalizing affirmative action, and encouraging worker mobilization (other than through traditional unions).<20> Worse, from the authors’ vantage, business interests strongly press for counter-measures like reining in the EEOC, shifting fees and costs to plaintiffs, increasing grants of summary judgment, and end-running  around courts through forced arbitration. The deep divisions between the sides will, therefore, almost surely preclude finding win-win, common sense ways to improve the system of employment civil rights litigation.<21> Damning with faint praise, ROT concludes:  “Perhaps its most important contribution is that it provides a venue for voices challenging illegal discrimination, even if it does not often provide significant remedies .”<22>

To close, as I opened, with my hypothetical aggrieved friend, I would advise her: Don’t go to court unless you absolutely have to. Try to agree with your adversary to give mediation a shot first. Not only will mediation give you a more meaningful voice than court, it will also maximize your chances of obtaining some relief soon rather than spending years of your life chasing, and likely not finding, justice. I would then offer to lend her my copy of ROT.

Of course, the book does not extol, and in fact fails even to address, mediation. So I might have to recommend additional readings to my friend. But ROT surely serves as Exhibit A for the sad proposition that employment civil rights litigation holds much less promise for aggrieved employees than they have been led to hope for and believe.

Endnotes

1. For ease and economy, I will refer to the book by the acronym ROT. —>
2. See generally Carrie Menkel-Meadow, Ethics and the Settlements of Mass Torts: When the Rules Meet the Road, 80 CORNELL L. REV. 1159, 1172-73 (1995). —>
3. See, e.g., Vivian Berger, Employment Mediation in the Twenty-First Century: Challenges in a Changing Environment, 5 U. Pa. J. Lab. & Emp. L. 487, 498-503 (2003). —>
4. ROT 261. —>
5. These were in Atlanta, Chicago, Dallas, New Orleans, New York City, Philadelphia and San Francisco. After some winnowing, the team ended up with 1,788 cases; for some analyses, they utilized only the 1,672 closed ones. ROT 20-21. —>
6. E.g., use of such terminology as “The Reinscription of Ascriptive Hierarchies Through Law” (ROT 268) to describe the book’s core thesis, see supra text at note 4, does not enhance a lay reader’s experience. See also id. at 11 (“reinscription” is defined as “the processes by which the ascriptive hierarchies that the law is intended to disrupt are reified and rearticulated through law in the workplace and in court”) (emphasis in original).  However, in the main, the book is written in plain English. And lawyers are hardly paragons of virtue at avoiding intrusive legalese. —>
7. ROT reports that the median settlement was $30,000 to $40,000 for a late settlement (one occurring after a denial of summary judgment). Id. at 63. In today’s dollars, a $30,000 settlement in 1995, approximately the midway point of ROT’s database, would be worth $48,793. See www.in2013dollars.com/1995-dollars-in-2018?amount=30000. This is hardly an immense amount; when one considers that many plaintiffs get nothing at all, roughly one-third of that figure would usually go to counsel, and plaintiff’s share would be subject to taxes. —>
8. These findings accord very well with those in my studies of the federal courts in New York City. See Vivian Berger, Winners and Losers: Employment Discrimination Trials in the Southern and Eastern Districts of New York: 2016 Update, 42 NYSBA Labor & Emp. L.J. 39, 39-40 (Spring 2017) (of 2004-10 filings, 30 percent of those cases tried to verdict resulted in a plaintiff victory); Vivian Berger, Summary Judgment Benchmarks for Settling Employment Discrimination Lawsuits (Summary Judgment Benchmarks) (with Michael O. Finkelstein & Kenneth Cheung), 23 Hofstra L. & Emp. L.J. 45, 51-53 (2005) (data from PACER for fi lings in 2000 and 2001 showed a 54.6 percent loss rate of plaintiffs on summary judgment motions). —>
9. ROT 204-05. —>
10. Id. at 129. Pro se plaintiffs have dramatically higher levels of dismissal, lower rates of settlement, and higher rates of loss on motions for summary judgment than plaintiffs who have lawyers throughout their cases. Id. at 112. With respect to the latter, cf. Berger, Summary Judgment Benchmarks, at 58 (almost 84 percent of plaintiffs facing motions for summary judgment were defeated). —>
11. ROT 68. —>
12. See supra text at note 4 and note 4. —>
13. ROT 18. —>
14. Id. 208. —>
15. Id. 229 (emphasis in original). —>
16. Id. at 243 (emphasis in original). —>
17. Id. at 226. —>
18. Id. at 23. —>
19. See supra text at note 13 and note 13 (emphasis supplied). —>
20. ROT notes that unions did not help plaintiffs much in their sampled cases. Id. at 274. It is well known that unionization is on the decline. Where unions still exist, many may wield quite little clout. —>
21. Id. at 273. —>
22. Id. at 279-80. Similarly, the writers emphasize their own role in “giv[ing] voice to the plaintiffs who have pursued their rights, as well as the lawyers who represented them and the defendant representatives who opposed them.” Id. at 278. —>