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New report highlights difficulties and advantages in employment discrimination lawsuits

Posted by Scott M. Peterson | Jul 21, 2017

A new report by the American Bar Association finds that only 1 percent of plaintiffs who file federal employment discrimination, harassment and retaliation claims win on the merits at trial.  The study, conducted by a legal analytics firm (Lex Machina), included lawsuits based upon hostile work environment, retaliation, Title VII race discrimination as well as discrimination based on age, equal rights, military, pregnancy and rehabilitation.

For the study the firm reviewed nearly 72,000 cases.  Of those cases, approximately 75% were settled short of trial.  In approximately 13% of the cases the employer was successful in having the claims dismissed.  One reason for the all the settlements – it speeds cases up: the median time to resolve cases via settlement was less than one year, while the median time to get to a trial was two years. 


These statistics may, at first glance, seem frustrating to victims of workplace discrimination.  But we believe they can also be viewed as encouraging.

The fact that two-thirds of employment discrimination lawsuits settle suggests to us that the cases with merit are, more often than not, resolved via settlement.  Is this always the case?  Of course not.  Some cases simply have to go to trial, often because one of the parties has taken an unreasonable position.

The reality, however, is that many times settlement may be a good thing when it comes to employment discrimination claims.  Trials are risky – and as the statistics show they are significantly more risky for the Plaintiff.  This is one of the reasons why we are always surprised to see lawyers advertising that they “aren't afraid of trial.” 

We aren't afraid of going to trial either.  In fact, jury trials are one of the most interested parts of our job.  But we also firmly believe that our obligation lies with the best interests of our clients, and not our egos.  What this means is that if a case is one that should be settled, and there is a good offer for our client, settlement should be considered. 

We take the same approach when we help small businesses.  Lawsuits are expensive, and when you are looking at the prospect of prolonged litigation the only people who tend to win are the lawyers.  It might very well make sense to try and settle things early on.  The statistics support this.

The reality is that despite some favorable trends in employment decisions, the law still generally favors the large company over the individual employee (or even class of employees), and to ignore this reality would be a disservice to clients. 

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on helping people protect their families.

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