What, isn’t it romantic? Watching you?

So I was reminded recently that there’s nothing creepier than seeing a wedding, and watching the bride and groom dance to “Every Breath You Take.”

There was a great article recently about the difficulties in bringing a Title VII action (which includes gender discrimination, sexual harassment, and hostile working environments). I recommend reading it here:

Seriously, read the article. It gets a lot right! But, unfortunately, it gets some things wrong.

Let’s start with what is correct- sexual harassment claims under Title VII are hard. Very hard. Part of the reason that they are hard, perversely enough, is because Congress wanted to make them easier. When Congress enacted the law enforcing anti-discrimination measures (called Title VII, or “Title 7"), they didn’t just create a law that people would bring a lawsuit under. Instead, Congress made it “easy” for people; they would just complain to the relevant agency (the EEOC, or Equal Employment Opportunity Commission, or the DOJ, or Department of Justice, depending on the nature of the employer), and the federal government would do the enforcement for you! Easy, peasy, lemon squeezy, right? The federal government would get rid of discrimination in the work place, root and branch.

Well, ahem, that didn’t work. First, the ... intensity ... with which the various agencies attack the issues is often influenced by the administration; each of these agencies is a part of the executive (the President) and different Presidents have, let’s say, different priorities. Now, many of the people in the agency are career, and take the cases with the same standards regardless of the President, but it definitely makes a difference.

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The next problem is resources. The EEOC (assuming a private employer) does its best, but doesn’t necessarily investigate all the problems thoroughly. Nevertheless, it resolves almost a quarter of complaints in favor of the complainant, receiving relief (which includes monetary as well as systemic in some cases). Sidenote- it’s unclear if they measured the DOJ suits, which are brought against state-level (government) employers. But the important thing here is that 1/4 of the meritorious lawsuits are removed from the pool, something that doesn’t happen in most civil lawsuits. The rest of the time (for the most part) the putative Plaintiff receives a “notice to sue,” which means that the putative Plaintiff can bring their own action, if they want to.

But here’s where you get to lies, damn lies, and statistics. If you read the claims from Professor Katie Eyler and the linked to-law review article, you learn that “[o]nly about four out 100 job discrimination lawsuits that aren’t settled or voluntarily dismissed end up providing any kind of relief for workers.” That sounds bad, and it is bad. But it’s also misleading. For example, it is an aggregation of different types of claims; as the linked-to article notes, race and disability claims have even lower rates of success - and the article fails to note that both disability and age (which has a higher rate of success) are brought under different frameworks entirely. Of course, this is ignored in the article, which fails to mention that, for example, race discrimination is even harder to win “at trial.” I understand that the point of the article was gender discrimination, so perhaps an aside that “race discrimination is even tougher” may have seemed out of place, but the issue isn’t just “gender discrimination,” it’s the entire framework for these types of claims, which includes gender discrimination claims. IMO. A point that is lost in the Vox article.

Which brings me to greatest failing of both the article and the linked-to piece. It reaches the exact wrong conclusions about the data, because it misunderstands the law. Title VII creates a presumption of attorney’s fees for the plaintiff, while the defendant (absent extenuating circumstances, such as a completely frivolous lawsuit) cannot recover attorney’s fees under the “American Rule.” This is unlike many statutes and causes of action, and creates a perverse incentive for the defendant. If a case has merit, then it will likely settle. Trials are expensive, and if there is a trial, the amount paid in attorney’s fees (for both the defense and the plaintiffs) will likely dwarf most possible settlements. Which means that, in addition to publicity (no employer likes bad publicity, leading to settlement) that most of the cases settle. In fact, there are two specific stages-

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1. Motion to Dismiss. This is a procedural step. Did the Plaintiff screw something up- forget to get a right to sue notice? Wait too long after the right to sue notice? The Defendant is looking to dispose of the action on procedural grounds.

2. Summary judgment. Here’s where you get some facts. But as I wrote before-

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Federal judges are more likely to put their thumbs on the scale. That said, when you read a federal court opinion that seems terrible, you need to remember that they are reciting the facts (or they should be, at least) in the light most favorable to the party that lost. So if you read these terrible things about a Defendant, and then the Defendant wins, the Court is saying that even if you believe every thing alleged about the Defendant, which may or may not be true, then the Defendant still wins as a matter of law.

The reason why these two steps are important is because of the settlement factor. No good defense attorney wants to tell MegaCorp, LLC, that “We can win this case in front of a jury.” Juries are unpredictable, and MegaCorp would be liable not just for the verdict, and your attorney’s fees, but the Plaintiff’s attorney’s fees as well. Which means that the best cases settle if a Plaintiff gets past summary judgment. The only cases that make it to trial, for the most part, are three types:

a. A “principle” case. A case where the employer doesn’t want to settle, or pay money, on principle. Principles are expensive, and, in general, have little place in the law.

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b. A “mismatch” case. An example where the Plaintiff and Defendant have wildly different valuations of the case’s value.

c. A “bad” case. One that the Defendant thinks has almost no merit on the facts, but survived summary judgment.

While it would be difficult to evaluate case merits (and when I speak of merits, I do not mean “real world” merit, but legal merit) in an objective sense, the overall impression I have received is opposite than that implied in the article (which implies, and the linked-to law journal states, that the most meritorious cases are the ones that are most likely to get to trial); that there is a constant winnowing of meritorious actions into settlements, due to the agency framework, the attorney’s fees provided, and the nature of the claims. This isn’t to say that truly meritorious claims don’t make it trial, or that juries don’t get it wrong, or that the whole system is unfair; just that the wrong inference is made from the statistics- that the winnowing necessarily implies that the best cases are making it through, only to lose.

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Moreover, the cited caselaw was meant more to provoke than to illuminate. The very first one recites terrible facts out of a case in Alabama (because of course it was Alabama). But you should look at the case itself (Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F. 3d 1287 (11th Cir. 2007) (“Baldwin”)-

https://scholar.google.com/scholar_case?case=8698451614605618741&q=

So, the two things to keep in mind are this-

a. These are the facts most favorable to the person who lost. So yes, the Court is supposed to make it sound bad.

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b. This case wasn’t about those facts. This is the hard part to understand. This case is about something called the Farragher-Ellsworth defense. To put it simply-

When you’re suing someone (civil actions), it’s about the money, generally. That’s not to say that Plaintiffs are greedy greedheads- because greedy greedheads are lawyers. Instead, it’s a simple acknowledgment that “legal remedies” mean money. So the Plaintiff in Baldwin isn’t suing the person that was doing the harassment (her supervisor), she was suing the employer- the company. Because that’s who you sue (and, as any good Plaintiff’s attorney will tell you, you go where the money is).

Many employers didn’t want to pay out for these claims. So they instituted policies and procedures for dealing with them internally- the whole, “If you are being discriminated against or harassed, you need to report it to HR.” And as they did so, the courts began to view this as a “good faith” defense to claims, called (after the cases) Farragher-Ellsworth. In short, you couldn’t sue the company, if the company had a way of reporting it, and you didn’t try and work with the company first.

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In other words, the case isn’t about the facts of the harassment or the hostile work environment, it’s about more procedural hoops; did the employee work with the company to resolve the claim? Did the company try and work with the employee to resolve the claim? In a way, this case is horrific, but not for the reason listed; it’s not the (alleged, in the light most favorable to the Plaintiff) harassment that’s horrifying, although it is, it’s that it is yet another example of how process matters more than the result, and a failure to abide by rules you may not be aware of prior to filing a lawsuit can doom you.

And that’s what it comes down to. The article is right, without being correct. The legal system is a blunt instrument in all cases. I have serious reservations about the statistics used in this article, and the inferences made from them because it appears to betray an ignorance of litigation in general, and Title VII in particular. But it is right that, for a multitude of reasons, claims are difficult. The agency model (EEOC/DOJ) was supposed to make lives easier, and in some cases it does. But it also creates a number of procedural steps that can trip up many people and get meritorious claims disposed of, simply by not knowing deadlines. The attorney’s fees provision is amazing, in that it allows people to hire attorneys they otherwise couldn’t afford, but it also causes pressure on employers to fight tooth-and-nail to get the case either procedurally dismissed/summary judgment, or settle (IMO, skewing the statistics). The federal law gives cases the imprimatur of the federal government, which is good for society, but also allows for removal to federal court, which is where companies want to defend cases.

...and this is before getting into Title VII and arbitration. An increasing number of cases will never see court because of mandatory arbitration. This is an issue because, as a general rule, arbitration awards are less than what you would receive in court, and because there is less pressure exerted on the Defendant to settle (for many reasons, including the cost of litigation being less).

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There are a number of issues with Title VII, and the linked-to article from Vox does a good job exploring some of them. One issue, raised at the end, is the problem with the judiciary; different people will have different opinions as to what constitutes “sexual harassment” in the workplace, and a judiciary that is predominantly older white men will have a more narrow view of it, for the most part. And there’s no quick or easy fix to that, but the gradual change of perceptions on the issue (as well as increasing diversity in the judiciary) should help.

Usually, I try to end a post with either a funny aside, or a summation of everything I have written. This subject lends itself to neither. There are no quick fixes to Title VII. An increased enforcement/investigative push by the EEOC/DOJ (combined with an Executive who cared) would help, but many complain that cases “settled” by the agencies do not receive full value.* It’s a truism that the primary value of these laws isn’t in the complete enforcement, it’s in the selective enforcement and the deterrent effect. The vast majority of people that suffer from a hostile working environment and/or discrimination will never bring a claim; they will just put up with it until they find a better working environment. The legal remedies (money paid out) are, in effect, something of a deterrent for companies; they “do the right thing,” not just because it’s the right thing to do, but because they know that there can be a cost for doing so. To be perfectly blunt, companies care about the money, and the law needs to have companies internalize the cost of keeping harassers and serial predators in their employment.

*From the Plaintiff’s side, removing some of the procedural hurdles and/or taking the cases out of arbitration should be beneficial in terms of expected recoveries.