How the legal system favors privileged groups

Those with legal representation (aka money) are most likely to have successful case outcomes. “Plaintiffs who do not have a lawyer [“one in four plaintiffs”] have their cases dismissed at a 40% rate compared to 11% for plaintiffs with lawyers,” say the authors of Rights on Trial. More privileged social groups obtain better results, ironic in an area of law intended to protect disadvantaged groups. Case dismissals often result from plaintiff misunderstandings (read: no education from a lawyer) and can cost plaintiffs court fees. Plaintiffs can also lose on settlement or all counts of summary judgment, when the defendant argues that there is no material issue of fact to be decided on and aggressively sets a deadline.

Settlement is the most common outcome of cases “with an estimated median of $30,000. Plaintiffs win something 60% of the time,” the authors say. Trials are rare and “return a victory for the plaintiff one time in three,” they add. Coupled with the fact that courts dismiss or terminate a significant portion of cases, even when plaintiffs have lawyers, most plaintiffs do not have the merits of their cases heard in court when they sue. Attorney fees provide incentive to settle, even if plaintiffs don’t believe the settlement amount is fair, and sometimes employers sue employees for those fees.

Unlawful firing is the most prevalent cause of action followed by discriminatory retaliation, promotion, pay, and hiring.

Individualizing cases is far more common than showing systemic problems. Disparate treatment cases mean showing discriminatory intent, while disparate impact cases mean showing that employment practices have a statistically disproportionate effect on a protected group. Disparate treatment cases are far more common as plaintiffs most often challenge their individual mistreatment versus the employment practices that impact a group of workers.

Collective legal mobilization leads to better outcomes but is far less common than individual cases (“one case in 10”). The common scenario is one-shot litigants and their cases that avoid policies that affect protected groups and instead allow employers to position issues as individual problems or personality conflicts.

Photo by Bill Oxford.

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