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Justice Ginsburg and the "Purpose" of Title VII:

Dissenting today in Ledbetter v. Goodyear Tire & Rubber Co., Justice Ginsburg writes, "This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute's broad remedial purpose."

The history of Title VII and its "purpose" is, at best, much more ambiguous than that. Title VII was modeled after state antidiscrimination laws enforced by Fair Employment Practice Commissions, which spread throughout the North and Midwest after WWII. The FEPCs focused on mediation between the aggrieved party and the allegedly discriminating employer, often lacked much in the way of enforcement power, and were widely perceived as largely ineffectual. Title VII built on various aspects of the FEPCs; the requirement of getting EEOC approval to file a suit, for example, built on the FEPC's agency-centered procedures. Civil rights advocates did win the right to sue with agency permission, but with damage caps and time limits.

At the time of its passage, then, many thought that Title VII would turn out to be not much more consequential than the FEPCs had been. In fact, my impression is that the public accommodations provision of the 1964 Civil Rights Act was far more controversial than was Title VII, especially when advocates for the latter promised it would not interfere with union seniority schemes or mandate "reverse discrimination."

Much to most people's surprise, however, civil rights advocates within the Justice Department turned Title VII into a powerful tool, by bringing large-scale class actions against employers, often on a disparate impact theory that was very far from the minds of Congress in 1964. Moreover, while at the time Title VII was thought to primarily be concerned with discrimination in hiring, plaintiffs' attorneys eventually realized there was more money, and a greater possibility of success, in filing cases involving discrimination in firing. All of this was nudged along by sympathetic courts, who consistently proclaimed, quite falsely, that Congress had intended Title VII to be a very broad, vigorous, remedial statute.

Whatever one thinks of this outcome, there's no excuse for distorting the history of the statute. In fairness to Justice Ginsburg, Congress did endorse many of the innovations initiated by Justice and plaintiffs' attorneys in later legislation, such as the Civil Rights Act of 1991. [Update: But to the extent she is arguing that even unamended parts of Title VII should be interpreted broadly because the statute, in 1964, had a broad remedial purpose, that is a rather distorted view of the law's history. As Justice Ginsburg suggests, the current Congress might choose to adopt her interpretation of Title VII through new legislation, but that is hardly evidence that her interpretation is consistent with the scope and intent of the statute as written.]

FURTHER UPDATE: I think it's a mistake to look at legislative "intent", which is easily manipulated post hoc. Rather, the issue is the "purpose" of Title VII, which can be easily gleaned from the text of the statute: to provide certain limited rights for individuals to sue for employment discrimination. The law's purported "broad remedial purpose" is contradicted by the requirement of EEOC approval to sue, but its application only to large employers, by damage caps, and so on. To the extent this isn't clear from the face of the statute, its historical relationship to the modest fair employment practice laws should make it clear. Congress has since broadened the statute somewhat, but not to the extent that one could reasonably argue that the law is intended to skew the balance drawn between employee and employer interests heavily in favor of the employees, as Justice Ginsburg's opinion suggests.

I picked on Justice Ginsburg's opinion because its language, joined by three other Justices, recalls the excesses of the Warren and Burger Court. In those days, the Court would routinely ignore the fact that a particular statute resulted from legislative compromise among various interest groups, pick out a "purpose" that suited the Justices ideological proclivities (preventing discrimination [but not noting the countervailing interests of employers reflected in the statutory language], protecting the environment [but not noting the countervailing interest in business efficiency and profits], helping the poor [but not noting Congress's desire to limit administrative burdens on local government, and the cost to taxpayers], and so forth), declare that to be the sole, overarching purpose of the statute, and proceed to ignore statutory language and often common sense in interpreting the statute.

Tennessean (mail):
Query whether a statute's purpose is fixed as of its passage? I suppose that question is tied to the related question of which Congress is the authority -- the Congress that passed the law or the current Congress that permits it continued existence? While their may be thorny interpretative questions invited by the latter option, clearly the prior Congress has no extant power.
5.29.2007 10:10pm
Recovering Law Grad:
Sources?
5.29.2007 10:33pm
neurodoc:
Tennessean, when courts must interpret statutes, legislative history, that is what the legislators who originally enacted the statute had to say in debates at the time, is taken into account. But that is not given as much weight as the words themselves, since it may be hard to say what exactly the original intent was and there may not have been unanimity as to the intent even among those who voted in favor of it. How the current Congress might like the statute to be interpreted is of no relevance, unless they take the necessary steps to change the words of the statute, that is to amend it.
5.29.2007 11:07pm
frankcross (mail):
Which they did in 1991.
5.29.2007 11:10pm
Bob from Tenn (mail):
I'm still waiting for HH Humphrey to eat the bill that he swore would not permit reverse discrimination.
5.29.2007 11:19pm
William Spieler (mail) (www):
Do the 1991 amendments change the purpose?
5.30.2007 12:21am
ATRGeek:
Given that the Civil Rights Act of 1991 amended Title VII, isn't it actually part of the history of the statute?
5.30.2007 12:21am
Christopher Cooke (mail):
Prof. Bernstein: I am puzzled by your post, which makes no real attempt to justify the Supreme Court majority opinion, but instead snipes at Justice Ginsburg for a comment that her dissent does not state, i.e., that the "broad remedial purposes of Title VII" justify her reading of the statute. I also found your silence as to whether the majority's reliance on<i> Lorance</i>, which Congress expressly overruled in 1991, was consistent with the intent of the statute to be somewhat odd. Your main point seems to be that Title VII law strayed far from the 1964 Congress' intent. Yet, as you partially acknowledge, Congress has affirmed these holdings' innovations (e.g., disparate impact, class actions) in later legislative, so I must wonder who is more faithful to Congress' legislative intent.
5.30.2007 1:27am
MikeC&F (mail):
I'd need to see an extensive discussion of the Congressional Record before I could conclude whether Title VII was intended to be broad or not. Can anyone help me out with an actual discussion of the legislative record?
5.30.2007 2:21am
David M. Nieporent (www):
Christopher: Ginsburg's statements about Lorance are not very compelling. Congress changing the law to overrule Lorance does not tell us what Congress's intent was when it passed the statute. And contrary to Ginsburg's dissent, the majority does not "rely" on Lorance. It cites it as one of a series of cases which all interpreted Title VII the same way, as holding that the time for filing is triggered by the discriminatory act, not by the fact that one feels the effects of the discriminatory act. When Congress wanted to overrule Lorance, it did so narrowly, focusing on seniority systems; it did not overrule all the other cases which interpreted Title VII that way.

Ginsburg's overall position makes little sense in practical terms. By her logic -- that is, that the continuing effects of discrimination each count as a new act of discrimination -- then if a company fails to hire me for racist reasons, each month that they fail to issue me a paycheck is a new act of discrimination. After all, if they had hired me, I'd have been getting a paycheck every month. (Ginsburg's reply would seem to be that the company could assert a laches defense, but I'm not sure why that holds. If each (lack of) payment is a new act of discrimination, then laches doesn't really apply.)

Her attempt to draw an analogy between pay disparity cases and hostile work environment cases fails because the whole point of hostile work environment cases is that the first act by itself isn't actionable (except in extremely rare situations). It's only the cumulative effect of hostile acts that becomes unlawful. But with the pay cases, the decision to underpay is actionable from the very first time the decision is made.
5.30.2007 2:29am
vsd (mail):
I don't remember the priest telling me when I went to Confession when I was a kid, "Well, Lance, it was wrong of you to disobey your mom and talk back to her like that, but since you set the table every night and do your homework and sent your aunt a birthday card, what the heck! You're a good kid. Your sins are forgiven automatically. No need for you to do any penance."糖尿病 心脑血管 文秘 糖尿病 糖尿病症状 糖尿病饮食 妊娠糖尿病 糖尿病预防 糖尿病治疗 糖尿病的预防 怎样预防糖尿病 糖尿病并发症 糖尿病药物 糖尿病足 低血糖 胰岛素 血糖仪 胰岛素泵 什么是糖尿病 并发症治疗 糖尿病急救 糖尿病中医治疗 糖尿病常识 糖尿病食谱 糖尿病的预防 糖尿病人饮食 糖尿病肾病 And maybe it's happened a few times and I haven't heard about it but I can't recall a judge ever letting somebody walk on the grounds the crook was a good guy and his friends really like him.
5.30.2007 5:22am
wb (mail):
The frustration underlying Ginsburg's dissent are real. The effects of pay discrimination are real; they are cumulative in small steps; and they are often difficult to detect by the employee. Moreover, as in many issues of labor equity, the employee is understandably reluctant to grieve or litigate about what they strongly suspect. Unfortunately, reading the law on its face - as the majority does - does not grant much relief to those who act at a late date.

The complaint of "cramped style" is a call to interpret statutes based on the effect that the judge wishes the statute to have. What is far preferable is new legislation which, on its face would offer expanded remedies to employees who suffer the death of a thousand cuts.
5.30.2007 8:08am
arbitraryaardvark (mail) (www):
In evaluating legislative intent, to what extent do we/should we take into account the intent of the president who sponsored and signed the bill? LBJ had been involved in the EEOC as a senator and vice-president. In 1964 he got more bills passed than Kennedy had in his 3 years. LBJ's goals included expanding federal agency authority over business, and in doing so to promote equality and the little guy, here a woman. He was skilled at putting language into bills with consequences that could be exploited later,and might not always be obvious to the senators he was arm-twisting to vote for the bills.
I don't know anything about the specific 6 months provision at issue here. We might have to wait for the next volume of Robert Caro's life of Johnson to find that out. But "broad remedial purpose" seems to fit. Ginsberg is someone who knows this material well, since she had a career of litigating women's pay issues. I'm not expressing an opinion as to which side of the court was right. But there's some support for her view of the legislative history.
5.30.2007 9:35am
J. F. Thomas (mail):
If you're looking at legislative intent, you've got to deal with the inconvenient fact that women were added to the civil rights act by an opponent in an attempt to torpedo the bill (he reckoned--wrongly--that adding women to the bill would be one protected class too many).
5.30.2007 10:57am
Anderson (mail) (www):
ATRGeek: Given that the Civil Rights Act of 1991 amended Title VII, isn't it actually part of the history of the statute?

[Crickets chirping.]
5.30.2007 11:12am
wcb:
This case is fundamentally about statutes of limitation. Title VII was intended to require employees to raise perceived discrimination in a very short time frame (180 days after it ocurred). Plaintiffs have argued that they should be able to evade this requirement by chaining different acts together to form a "continuing violation." Several years ago, the Supreme Court finally addressed this issue and said that (except for harassment claims) each discrete act had its own limitations period and that they could not be tied together. Pay claims were not addressed and were a serious open question for practicioners. Management lawyers have argued that the act giving rise to the allegedly disparate pay should start the clock ticking. Plaintiffs have wanted to use each individual check as a specific "act." In this particular case, Ledbetter was trying to reach back and cover almost 20 years of allegedly discriminatory pay decisions. One can quibble about the "broad remedial purposes" (which are a common invocation in these cases), but it is very hard to argue that anyone intended Title VII to work in that fashion, even in the 1991 amendments.

Ironically, those who complain about the current court's "conservative" approach to these cases often fail to realize that the court has been much more sympathetic to employee claims in the past 10 years than it was historically. The 1980's featured numerous cases limiting Title VII theories (some of which were limited or reversed by the 1991 act).
5.30.2007 11:23am
Christopher Cooke (mail):
Wcb correctly summarizes that the debate in Ledbetter is about statute of limitations. If you read both the majority and the dissent, it comes down to whether Ledbetter's case should be governed by the Bazemore decision, which held that each time a paycheck was issued, that was a new discriminatory act (based on a pre-Title VII, illegal pay structure that overtly discriminated against blacks), or the analysis applied in Morgan/Ricks/Evans/Lorance cases, which did not involve pay claims, and in which the Supreme Court ruled that an act, not discriminatory on its face, can't become discriminatory because it followed illegal conduct.

As far as legislative intent and history, I note that the EEOC, the agency charged with administering this statute, sided with Ledbetter in its brief before the 11th Circuit, and the dissent quoted legislative sponsors of the 1991 Act that made it clear that Lorance's analysis was disapproved by Congress, not just in seniority system cases, but in other areas. But, such sponsors statements are akin to dicta, in the legislative history context.

As far as going back 20 years, the EEOC would have limited Ledbetter's back pay claims to 2 years, so I hardly find that a terrible burden for employers, both from an evidentiary standpoint or from a fairness perspective. Personally, I think the EEOC's position was the most sensible one.
5.30.2007 11:42am
JosephSlater (mail):
For some good arguments that Ledbetter was wrongly decided, see Paul Secunda's post on Workplace Prof Blog on the subject.

I'm trying to get the link function to work. Since it's never worked for me before, as a fallback, go here if interested:

http://lawprofessors.typepad.com/laborprof_blog/
5.30.2007 12:05pm
wcb:
Sorry I can never agree that the EEOC is sensible about anything. They have been chastized, ignored, and rebuked more than any other federal agency. Their interpretations of the statutes they enforce aren't even given Chevron deference. From personal experience, I can say that in 9 yrs of dealing with them, I have yet to deal with an agency employee who I thought demonstrated any real competence. Even the plaintiffs' bar hates them because of the way they mangle cases and investigations.

I haven't read Ledbetter yet, but am generally familiar with it. The 2 yr limitation is just on recovery. It doesn't effect what one could try to bring in to evidence or assert as the basis of liability. Do you really mean someone should be able to bring a claim for a personnel decision made in 1985 that allegedly causes their pay to be supressed today? I believe that was her position, but she was only going to be allowed 2 yrs of recovery, not the full 20.
5.30.2007 12:05pm
Steve2:
Is there a reason that disparate pay had to be framed as "giving effect to a single discrete act completed in the past" or "a series of discrete acts", rather than "an ongoing act"? As in, the single act of discriminatory pay began in year 197x and went on until 199y?
5.30.2007 12:42pm
JosephSlater (mail):
I don't find the examples in the "update" as to why Title VII is "narrow" to be all that convincing. The "EEOC's permission to sue" is entirely pro forma: plaintiffs typically just have to wait until the time period passes to sue, and the EEOC can't stop plaintiffs from suing. Contrast this, e.g., with some other workplace law rules: under the NLRA, it's practically impossible to bring a ULP charge unless the NLRB decides the charge has merit; OSHA retaliation claims can only be brought if the DoL brings it; etc.

Also, while there are limits on the size of employers that can be sued, I'm not sure 15 employees (the Title VII threshhold) is a "large" employer. Contrast that with the ADEA's requirement of 20 employees for coverage, or the 50 employees required for coverage under the FMLA. And the damages allowed under Title VII are pretty generous, as employment laws go (again, compare the NLRA).

Of course none of this means a Court should be allowed to "skew the balance drawn between employee and employer interests heavily in favor of the employees," to use DB's term. But I don't see any attempt to do that in the 4-vote dissent. Plus, for the record, Title VII is apparently already quite skewed in favor of employers, given that employment discrimination plaintiffs do worse at pretty much every stage of litigation than do plaintiffs in pretty much any other type of suit.

Finally, in the big picture, Congress broadened the 1991 Act by explicitly rejecting multiple examples of conservative Supreme Court decisions that narrowed the scope of Title VII. I might worry about that sort of thing recurring more than about this dissent recalling the "excesses of the Warren and Burger courts."
5.30.2007 12:52pm
Anderson (mail) (www):
The "EEOC's permission to sue" is entirely pro forma: plaintiffs typically just have to wait until the time period passes to sue, and the EEOC can't stop plaintiffs from suing.

Right; at best, DB does not understand the law in question.
5.30.2007 12:58pm
whackjobbbb:
Well, I'll leave it to you lawyers to argue the law. I'll take the plain reading on this, as did the majority, evidently. And yes this is a rejection of the old guard's approach, including Sergeant Major Ginsberg. I like that a lot.

I don't see anybody arguing the facts, and they may be undisputed, but this woman may in fact have been the least qualified in the group, and was thus compensated accordingly. So you can't exclude the essential fairness of her treatment, unless you look only to the presence or absence of a chromosome in an employee's biology as your cue. In working with large organizations, I've found them particularly susceptible to PC hiring and promotion practices, and generally speaking, women managers are often the least qualified because of these foolish practices, and invariably a far greater % are incompetent than a comparable male sample.

Not to mention, she stayed there, and accepted this employment "contract" for a long period of time. So the court merely accepted her longterm acceptance of the situation, and looked to the 180 day provision as to application of the law to the situation. All's well.
5.30.2007 1:37pm
davod (mail):
Not being a lawyer I find the "intent of the legisdlators" argument to be silly, much like divining the "intent of the voter" in the 2000 election. Unlesss the legislation is clear on its face SCOTUS should just say it is ambiguous ans suggest it needs to be clarified.
5.30.2007 1:38pm
Justin (mail):
DB, I just want to point out that even (particularly?) with your update, your bland assertions, normative labeling, and failure to provide reasoning implies that you are preaching to the choir, and not trying to convince people who might otherwise be skeptical. Nothing wrong with that (hey, its your blog), but don't be surprised if the skeptics don't thereafter agree.
5.30.2007 1:44pm
c.f.w. (mail):
If there is to be say a real 4 year statute for this sort of claim (usual statute for breach of written contract) then maybe there needs to be readily available data about what other employees in the firm make.

That is traditionally considered private between the employee and his/her firm. We could make it non-private, as we did in the 1930's with securities regulation. It used to be that public companies could keep their books and records private - that changed, to help protect investors. I could see taking the same step for employee pay and benefits, but I am not an employee.

If disclosure requirements are increased (one cannot stop with salary and benefits, leaving out annual or semi annual evaluation reports, attendance records, records of discipline and counseling, etc.), then willingness to employ (as opposed to hiring temps or independent contractors) goes down.

A relevant question is how common is the Ledbetter situation. It seems extreme to me. If it is an outlier, we may want to avoid building too much new legislation on the premise that employers commonly do this (as opposed to more subtle forms of discrimination).
5.30.2007 2:02pm
JosephSlater (mail):
Whackjobbb writes:

I don't see anybody arguing the facts, and they may be undisputed, but this woman may in fact have been the least qualified in the group, and was thus compensated accordingly.


Well, see, that's the thing about undisputed facts -- people don't argue them in court, so that's not what the decision's about. The defense was not "she was the least qualified and thefore paid less." If they had proved that, nobody would complain. The defense was about what type of events do and do not trigger the statute of limitations.

Or should I say, "maybe this wasn't really gender discrimination because plaintiff was a woman, because maybe plaintiff really a man. Sure, that wasn't in dispute, but. . . ."
5.30.2007 2:03pm
JosephSlater (mail):
C.F.W. raises an interesting and important point: a number of companies bar their employees from discussing their compensation with each other. Now, if the employees are covered by the National Labor Relations Act, such a rule is illegal, but many employees aren't covered by the NLRA.
5.30.2007 2:05pm
wcb:
Title VII plaintiffs lose so often because there are so many frivolous suits in this area. For one thing, there are low barriers to entry for plaintiff's counsel. Unlike med mal or products liability cases, it isn't necessary to have experts in most cases. The overall costs of litigation for plaintiffs and their counsel is low. And a high percent of ppl who are fired or otherwise believe they have been mistreated at work believe that it is someone else's fault. It is rarely their own. This is by no means limited to those in protected categories. They are just the only ones who have an arguable remedy. For example, I've seen numerous age discrimination suits by 45ish white males who claim age discrimination because a mid to late 30's person received something they didn't. Many ppl want to sue in these circumstances and it is just a question of trying to shoe horn themselves in to coverage. This is all far removed from the high minded theoretical issues, but is often the day to day reality of such litigation.
5.30.2007 2:07pm
Per Son:
whackjobbbb:

A jury already decided that she did indeed suffer from discrimination. That was not disturbed. The issue was whether Title VII's statute of limitation should have prevented the case from ever being heard.
5.30.2007 2:11pm
Per Son:
wcb wrote:

"The overall costs of litigation for plaintiffs and their counsel is low."

When I represented employees against the federal government, the costs were extremely high. We needed experts for every case regarding back pay and comp damages, and we had no contingency fee arrangements. What that meant was that only highly paid employees could afford to bring such cases.

Sure there are plenty of crap cases, but the burden to survive summary judgement is quite high - it would be disingenuous to consider that it is not.
5.30.2007 2:15pm
JosephSlater (mail):
WCB:

I'm not so sure about "low barriers to entry." Many plaintiffs'-side lawyers take cases on a contingency fee basis, which means they must be making some sort of rational guess at the strength of their case -- but they turn out to be wrong much more often than cases of ANY OTHER TYPE, including all sorts of routine litigation that doesn't require experts. And some Title VII litigation does require experts.

You're right that folks feel bad when they get fired, but they feel bad about a bunch of other things, from broken contracts to denied insurance claims, to torts -- and Title VII plaintiffs still do worse than other types of civil litigants.

I think there is something to what you say about folks getting fired and trying to shoehorn into Title VII -- especially since the U.S. has no general "just cause" protection for employees. But that doesn't explain why so many plaintiffs' lawyers get far into litigation -- incurring expenses they typically won't recoup if they lose -- and lose so frequently.

Anyway, the underlying point is that we are far from a situation in which the law risks being slanted unfairly toward plaintiffs.
5.30.2007 2:16pm
ATRGeek:
I'm not sure there is much more to say about Bernstein's attempt to save his argument in his update. I'll just note that I am aware of many other contexts in which judges, liberal and conservative alike, have cited the broad remedial purposes of a statutory scheme as an interpretative tool (eg, that is something I have often seen claimed about the federal securities laws, or antitrust laws, or so on).

All that is consistent with the fact that these laws are sometimes highly technical and full of various limits and procedural requirements. Indeed, the basic idea behind this interpretative tool is that if the application of a complex procedural scheme to a particular case is ambiguous, but the Act in general has a broad remedial purpose (preventing securities fraud, protecting competition, prohibiting employment discrimination, and so on), the court should favor allowing an action which is consistent with that purpose to proceed in the absence of a relatively clear procedural prohibition.

So, here I think the dissent is actually offering a perfectly normal invocation of this tool: again, if one believes the statute of limitations in question is ambiguous in application to this case, and that the alleged harm is the sort intended to be remedied by the Act, then it makes sense to cite the broad remedial purposes of the Act when applying the statute of limitations.

Of course, maybe you do not think the application of the statute of limitations is ambiguous, in which case you do not get to this issue.
5.30.2007 2:16pm
duneclimb:

... employment discrimination plaintiffs do worse at pretty much every stage of litigation than do plaintiffs in pretty much any other type of suit.


Not in front of juries, they don't. With virtually every juror having been treated unfairly by employers, and few jurors ever having been responsible for managing employees, I've repeatedly seen jurors simply ignore the judge's instructions to on the law to be applied in these types of cases, such as the "business judgment" instruction telling the jury that its job is not to decide whether the employer's conduct was fair or wise, but only whether the employer was motivated by the relevant unlawful factor. The stacked deck of jury trials in employment cases is why so many employers now require new employees to sign arbitration agreements or employment agreements with jury trial waivers.

By the way, wcb is absolutely right about the frivolous nature of 95% of these cases.
5.30.2007 2:24pm
JosephSlater (mail):
Here are some stats on plaintiffs in employment discrimination cases. Full citations can be found in my upcoming article, currently on SSRN here

First, before going to court, plaintiffs must first file with the EEOC; only about 15 percent of claims filed with the EEOC result in any relief for plaintiffs, a rate generally lower than for other administrative claims. Plaintiffs lose employment discrimination cases both at the trial level and on appeal at a greater rate than plaintiffs in almost literally every other type of civil case. A recent study found that at the pretrial stage, defendants won 98 percent of employment discrimination cases; compare that to a 66 percent success rate for defendants in insurance cases. In cases tried before judges, employment discrimination plaintiffs succeeded in 18.7 percent of the cases. In contrast, plaintiffs in insurance cases won 43.6 percent of the time, and plaintiffs in personal injury cases won 41.8 percent of the time. Further, employment discrimination defendants who lose at the trial level do startlingly better on appeal (winning reversal over 43 percent of the time) than do employment discrimination plaintiffs who lose at the trial level (winning reversal 5.85 percent of the time, a lower rate than any other category of cases except prisoner habeas corpus cases).

Also, the claim that "95% of these claims are frivlous" has no basis in any of the research, and it doesn't deal with the fact that -- as I said before -- plaintiffs' lawyers are taking these cases, often on a contigency basis, and losing money when they lose. Are plaintiffs lawyers who take employment discrimination cases that much more economically irrational than pretty much any other kind of lawyer, plaintiffs side or otherwise? A more logical explanation is that these cases are surprising hard to win.
5.30.2007 2:43pm
Brasher:
Plaintiff's lawyers take so many Title VII cases because of the fee-shifting statute. It doesn't matter how much they recover for their client; as long as they win, they are awarded reasonable fees by the court on top of the plaintiff's damages. That is the reason so many of these cases get filed. In what other area of law could a plaintiff's lawyer expect to make $400,000 in fees on a $50,000 claim?
5.30.2007 3:28pm
Brasher:
To comment on my above post: The fee-shifting statute also explains why so many of these cases lose. Only the worst plaintiff's lawyers take routine employment disrimination cases because only the worst plaintiff's lawyers are content to recieve a court determined hourly fee. A good plaintiffs' lawyer spends all his time pursuing cases that will give him 1/3 of his client's total recovery on contingency.
5.30.2007 3:31pm
whackjobbbb:

Not in front of juries, they don't. With virtually every juror having been treated unfairly by employers, and few jurors ever having been responsible for managing employees, I've repeatedly seen jurors simply ignore the judge's instructions to on the law to be applied in these types of cases


Exactly, duneclimb. Perhaps the facts were not in dispute at the SC level, but that doesn't imply that they were handled "fairly" at the lower level, nor that we should give them any "moral" value. I don't, and I assume it to be AT LEAST as likely that they're weren't as that they were. But once a jury decides that the facts go one way, it leaves the company only one direction, pettifogging though that may be... to argue the 180 day rule.

I only make this point to remove the "moral" weight that Sergeant Major Ginsburg and the other reactionaries are attempting to attach to this woman's case (and yes, she may have been a woman, or a man, or a transvestite, or a space alien, even if that is not in dispute at this level), and by extension... ALL women.

As I say, I'll let you lawyers talk it out, but understand your talk is only a portion of what's into this case, and yes I've sat on juries... and most of them will unreasonably go for the "little guy/gal", no matter what the facts of the case are. That's what must be factored into these cases... that emotion is already built in at the lower levels, and the upper levels MUST remove emotional concerns... and deal with the law alone. Ginsburg's whiny emotionalism and pleading is simply revolting in that context.

Clear off, Madame Ginsburg... your time is clearly past.
5.30.2007 3:39pm
JosephSlater (mail):
Brasher:

But there are no attorney's fees for plaintiffs' lawyers if they lose -- which they often do. And it's not as if there is some multi-million dollar possible pot at the end of the rainbow for individual cases. As David Bernstein's original post points out, there are caps on damages.
5.30.2007 3:41pm
whackjobbbb:
Exactly, Brasher. And the slip-and-fall case statistics might just as well be proof of only that we need to curtail that nonsense, rather than proof that employment "discrimination" is such a huge problem.

The alleged woman stayed in this alleged discriminatory environment for 20 years. I rest my case.
5.30.2007 3:44pm
JosephSlater (mail):
So, basically, whackjobbb, your problem is with the jury system as a whole.
5.30.2007 3:44pm
whackjobbbb:
No Mr. Slater, the jury system is perhaps as fair as any other... but the results will be arrived at emotionally... not purely fact based. Superior proceedings MUST recognize the existence of these elements, and remove them from their own proceedings... as Ms. Ginsberg is clearly incapable of doing at this point.
5.30.2007 3:46pm
davidbernstein (mail):
So, here I think the dissent is actually offering a perfectly normal invocation of this tool: again, if one believes the statute of limitations in question is ambiguous in application to this case, and that the alleged harm is the sort intended to be remedied by the Act, then it makes sense to cite the broad remedial purposes of the Act when applying the statute of limitations.


Why not, if the law is ambiguous, and didn't clearly intend to impose additional liabilities on employers, the Court holds that it doesn't? That strikes me as a better normative principle of interpretation, especially given that, in general, the relief avaiable under Title VII is limited.
5.30.2007 3:51pm
JosephSlater (mail):
Whackjobb:

Ginsburg is "clearly incapable" of overturning a factual determination that wasn't at issue in the case before her? I would think that would be a good thing.
5.30.2007 4:04pm
whackjobbbb:
So would I. However, if you actually read my post, you'd see that I pointed out the obvious... that Ginsberg is clearly incapable of removing her own personal emotionalism from her involvement in this case, which should be the first charge of a superior court... or any court for that matter.
5.30.2007 4:16pm
JosephSlater (mail):
I read your post. You don't provide any evidence of Ginsburg being "emotionally incapable" of anything. You started by asserting that maybe defendants should have won this case because plaintiff was not a good worker. When you were told that (a) this issue wasn't before the court, and (b) the jury below had found there actually was sex discrimination on the merits, you then went on a rant about the incompetency of juries to determine -- well, a lot of things, but perhaps especially the validity of discrimination suits by "the little guy." You then dismissed data showing how poorly employment discrimination plaintiffs actually do by asserting, with no evidence, that "95% of all employment discrimination claims are "frivolous."

You then take a position adopted by four Supreme Court justices, the EEOC, and various lower courts on the technical application of statutes of limitations rules and attribute it to "personal emotionalism" on Ginsburg's part, because . . . what, she didn't make an automatic assumption that the jury below was wrong on the facts, when that issue wasn't even before the court?

Based on the above, you might look to yourself first when considering who suffers from "personal emotionalism" on this issue.
5.30.2007 4:29pm
whackjobbbb:

You don't provide any evidence of Ginsburg being "emotionally incapable" of anything.


Actually, I said she was "clearly incapable" of removing her own emotionalism from her work... the court's first charge IMO. Her whiny, emotional pleading... perhaps unprecedented for her and for that court I'm told... is "evidence" of that emotionalism. She didn't like the ruling, and publicly pouted, and shoved the usual "moral" baggage into play, the "facts" that were resolved at the lower level... and yes IMO often settled emotionally and often fact-free. It was she who brought up the lower court proceedings and facts, my friend.


You started by asserting that maybe defendants should have won this case because plaintiff was not a good worker.


Which is entirely possible, and why wouldn't any rational person point out that possibility?


When you were told that (a) this issue wasn't before the court, and (b) the jury below had found there actually was sex discrimination on the merits, you then went on a rant about the incompetency of juries to determine


No, actually, I "went on a rant" pointing out the prevalence of emotion in juries. I would think being a lawyer type, you might acknowledge this reality... but then perhaps you've never participated in multiple legal cases... as I have... and are not informed by practical experience as to jury behavior. I've seen it, up close and personal.


-- well, a lot of things, but perhaps especially the validity of discrimination suits by "the little guy."


You're getting as whiny as Madame Ginsburg, now. Stick to the facts.


You then dismissed data showing how poorly employment discrimination plaintiffs actually do by asserting, with no evidence, that "95% of all employment discrimination claims are "frivolous."


No, I didn't say that. Try reading my posts, and remove your emotionalism.

But I DID point out your reliance on slip-and-fall data to support your POV. As you might imagine, I don't view such data as a valid benchmark data set, but nice try.



You then take a position adopted by four Supreme Court justices, the EEOC, and various lower courts on the technical application of statutes of limitations rules and attribute it to "personal emotionalism" on Ginsburg's part, because . . .


No, her vote on a case may or may not be "emotional", but her whiny rant clearly IS... and quite disgraceful I might add. I expect better, and she should resign.


what, she didn't make an automatic assumption that the jury below was wrong on the facts, when that issue wasn't even before the court?


You know, you really ought to read my posts, and get my statements right. Try quoting what I say, as I'm doing here, and then respond to only that.

I'm sorry, Mr. Slater, but it seems you've lost one here, and you're just whining along with Ginsburg.

I don't want to make this personal, so let's just discuss what we do or do not know. The lower court/jury may have gotten the facts completely wrong. The plaintiff may be the worst employee in world history. The plaintiff did work for a couple decades under "contract", in the alleged discriminatory job. And the SC may have properly applied the law in throwing out her claim, and apparently even Ginsburg doesn't dispute the majority's clear reading of the law, just her (whiny and emotional) disagreement with the outcome.

But you can comment on all this, and clarify if you want. Try to stick with what I said, however, and not what you fantasize I say.


Based on the above, you might look to yourself first when considering who suffers from "personal emotionalism" on this issue.


Right back at ya', my man.
5.30.2007 4:51pm
JosephSlater (mail):
Whackjobb:

I'll let anybody else who might still have the misfortune of reading any of this sort out who actually said what and who is more convincing. Just know that referring to other people that have presented you with inconvenient facts as being "whiny and emotional" doesn't really pass for informed dialogue.
5.30.2007 4:57pm
ATRGeek:
Professor Bernstein,

I think you are confusing two different sort of interpretative issues.

One possible sort of interpretative issue is whether or not the Act renders the alleged conduct unlawful (we might call this a "substantive" issue). I am not aware of the "broad remedial purposes" interpretative tool being widely used in the substantive context, and in any event that was not the sort of issue in this case.

The second sort of interpretative issue is whether or not the Act allows the plaintiff to seek a remedy for the alleged unlawful conduct (we might call this a "procedural" issue, broadly defined to include things like jurisdiction and standing). That is the context in which I am aware of courts regularly citing certain Act's broad remedial purposes (eg, for the purpose of determining whether a private plaintiff has standing under certain provisions of the Exchange Act or the Clayton Act).

I would suggest a statute of limitations clearly falls into the "procedural" and not "substantive" category for the purposes of this analysis, and hence the proposed application of the interpretative tool in question is proper. Of course, I am well aware this procedural/substantive distinction is often criticized, which is why I am keeping it in scare quotes. The basic logic, however, is sound: the idea is just that when in doubt, we should favor interpretations of the Act which provide a remedy for conduct the Act renders unlawful.
5.30.2007 4:58pm
whackjobbbb:
My (blessedly-law-school-free) phased array radar tells me that we're seeing a case with a certain amount of "landmarkiness" to it, and Ginsberg's reactionary pouting tells me that she sees this too.

Good deal. It's about time we put aside this rohrschact business in the courts. That seems to be what the Volokh blogger guy was referencing, more than any technical point in the law.

But hey, if there's been some horrible tragedy inflicted here, by all means let's address it for future instances. Get to work Congress/Executive.
5.30.2007 5:02pm
ATRGeek:
For what it is worth, I suspect the poster "whackjobbbb" is a troll or just a satire. The name is a bit of a giveaway, and it also strikes me that it would be hard to overlook the incoherence of passages like:

"I'm sorry, Mr. Slater, but it seems you've lost one here, and you're just whining along with Ginsburg.

I don't want to make this personal ..."
5.30.2007 5:04pm
whackjobbbb:
Mr. Slater,

I have no need for anybody to accept me as "convincing", but I DO accept your surrender!

And I DON'T accept Ginsburg's whiny, emotional rant about the outcome of a case that didn't go her way. She needs to get lost, it's over for her now.

So let's move on. How about we develop a mechanism to turn over these federal judges? I suggest 20 years tops. Heck, if you make it 30, we could STILL get rid of this Feikens guy here in the Midwest, who's operated the Detroit Water and Sewerage Department for the last 3 decades, on a "temporary" basis.

Let's start moving these people out, rather than waiting for them to die on the bench as we currently are. I think if they're moved on regularly, there's less chance for these emotional attachments to cases, or at least a more constant turnover will equalize them over time. Dump Feikens, and I'd about guarantee that the above case comes to a head, and the perversion he's created will flatten out and disappear.
5.30.2007 5:13pm
davidbernstein (mail):
ATR, my own view is that statutes of limitations provide important "substantive" protections for potential defendants.
5.30.2007 5:14pm
whackjobbbb:
Well geek, I might be incoherent, but it appears to be catching, as my buddy Slater sorta went to pieces up there.
5.30.2007 5:16pm
JosephSlater (mail):
ATRGeek:

Nice catch!
5.30.2007 5:32pm
whackjobbbb:
Yeah, he didn't fantasize, he actually read and responded to what I posted.

You should try that some time!
5.30.2007 5:35pm
JosephSlater (mail):
Stop being so whiny.
5.30.2007 6:00pm
ATRGeek:
Professor Bernstein,

Again, I don't think the "procedural"/"substantive" labels are important, so maybe it is best to drop them. The important point is that statutes of limitation are not about defining what conduct is lawful or unlawful under the Act. Hence, I would suggest that when you wrote, "Why not, if the law is ambiguous, and didn't clearly intend to impose additional liabilities on employers ...", you were referencing a different issue (what conduct was liable, rather than a statute of limitations).

Now, perhaps you would argue that because a statute of limitations often has the effect of benefiting defendants even when their alleged conduct is unlawful, we should interpret a statute of limitations to maximize the benefit to defendants. I don't think there is anything at all obvious about that proposition, however, and indeed I think that is a misconception of statute of limitations, since many of the primary justifications for SOLs relate to evidentiary concerns and the efficient allocation of judicial resources. Those are more systematic concerns than pro-defendant concerns (and indeed, the idea may be in part to encourage plaintiffs to bring their cases when they will be most effective).

Still, there is indeed a common "pro-defendent" purpose to SOLs insofar as they are in part intended to provide potential defendants with "repose". But if you are relying on that particular partial purpose of SOLs, then I think it is fair to ask whether that particular purpose should outweigh the rebuttable presumption that if a Act provides for liability it generally intends to provide an effective remedy.

In short, whatever you want to call it, a statute of limitations is not about liability in the direct sense, and not necessarily provided just for the benefit of defendants. So, it seems appropriate to me to interpret ambiguous statutes of limitation somewhat narrowly.
5.30.2007 6:29pm
wcb:
Professor Slater,

I'd love to see the source for that data re discrimination case results. I've represented management in these cases for 9 years and have handled numerous single and multi-plaintiff cases, including class cases. Maybe only 2% of plaintiffs win jury verdicts, but 98% do not "lose." Most cases with any "merit" are settled. Many cases with little "merit" settle as well because oflitigation costs. And it is very rare for plaintiffs to use an expert. I've only had someone use a paid damages expert on a handful of single plaintiff cases where the person was highly compensated. People with simpler compensation (particularly those with lower wages) can easily calculate damages without an expert.

Many cases are filed by a lawyer who puts a minimum amount of time in and tries to obtain a maximum reward on that time. That's the nature of contingency fee work. However, many very good plaintiffs lawyers litigate the cases heavily because they know that their work will frequently be rewarded in settlements and fee awards. And lets not be afraid to point out that under Christensburg an employer virtually never gets fees unless the claims are pursued in absolute bad faith.

Plaintiffs who lose jury verdicts usually do so because they have terrible claims or because they are unsympathetic. There is almost never prejudice against a plaintiff that involves the disregard of legal standards or their misapplication. Juries do, however, often apply "fairness" standards to employers that have nothing to do with the merits of the litigation. I'll wager that has a lot to do with your appellate results.

Finally, what are you talking about when you reference relief from the EEOC? The EEOC can only adjudicate federal employee claims. Otherwise they just issue "cause" or "no cause" determinations. The results of those rarely have anything to do with anti-plaintiff bias. Most EEOC investigators are extremely pro-plaintiff.
5.30.2007 7:15pm
whackjobbbb:
wcb reminds me of another splendid little reform we need to introduce here (after we start putting some of these creaky, petulant federal judges out to pasture): LOSER PAYS.

Did a whole bunch of lawyer types just feel a cold shiver?

Leave everything as it is... all the laws. Heck, make it even LOOSER. ELIMINATE those cumbersome "statutes of limitation", and turn it all loose. If you can demonstrate damages now or later, then do so. Just bring it on, counselors... today... 5 years from now... whenever.

But just remember, Matlock, that when you deliver that complaint to the court, make sure you staple that surety bond to the top page, to cover all costs associated with your perfectly-framed and justifiable arguments, should they be found not perfect and not justified.

Another cold shiver. Sorry, gang!
5.30.2007 7:50pm
David M. Nieporent (www):
ATRGeek: Given that the Civil Rights Act of 1991 amended Title VII, isn't it actually part of the history of the statute?

[Crickets chirping.]
No. It's part of the history of itself. It doesn't retroactively amend the history of other sections of the statute. And the CRA of 1991 is irrelevant to this particular claim.


I know this is a little off-topic, and it almost feels like throwing red meat to the wolves, but speaking of 'broad remedial purpose' as an interpretive tool reminds me of the current administration's citation of the AUMF as authorizing virtually anything that the president wants to do in fighting the GWOT, on the grounds that the purpose of the AUMF was to broadly empower the president. (I'm betting that the people who cite 'broad remedial purpose' in the Ledbetter context are far less forgiving of such arguments in the case of the AUMF.)
5.30.2007 9:08pm
Christopher Cooke (mail):
whackjobbb: the "loser pay" system is essentially what is already in place in England. I don't think it would cause attorneys to "feel a cold shiver" but maybe some clients would. And, it is not as uncommon as you think because many contracts already award attorneys fees to the prevailing party.
5.30.2007 9:14pm
U.Va. 2L:
whackjobbbb appears to be just that.
5.30.2007 11:38pm
ATRGeek:
David M. Nieporent,

I didn't suggest the Civil Rights Act of 1991 "retroactively amend[ed] the history of other sections of the statute." Frankly, I'm not even sure what that means. My point was rather that the later amendments became part of the history of Title VII. In that sense, they added to the history of the Act, but did not amend the prior aspects of the history of the Act (again, I'm not even sure what that would mean).

Now, if you want to argue that this part of Title VII's history is irrelevant to the question in the case, that is a different matter. Personally, I'm not sure that is completely clear, but again that is a different issue from the the one I originally raised.

By the way, I do think the AUMF issue is at best a tangent. Moreover, I'm not sure to what you are referring when you write, "the current administration's citation of the AUMF as authorizing virtually anything that the president wants to do in fighting the GWOT, on the grounds that the purpose of the AUMF was to broadly empower the president." I agree that the Administration has made some pretty bad arguments on the basis of the AUMF, but to my recollection they have never been quite that bad.

Finally, even if they had made such an argument, it would be disanalogous. "Remedial" here is a legal term of art, and refers to "remedies" in the sense of courts enforcing rights in response to a meritorious civil action. The President using military force would not be "remedial" in the relevant legal sense.

Perhaps it is worth making something a bit more explicit. The basic logic of the interpretative tool in question goes back to one of Blackstone's legal maxims, which has sometimes been stated as the principle that "for every right there is a remedy". For various reasons that is not strictly true in every case, and a statute of limitations is in fact a good example of how an Act might provide a legal right in general but then deny a remedy for that right in a particular case. Again, though, the logic of this interpretative tool is that when in doubt, we should interpret such limitations on remedies narrowly.

And again, none of that has much to do with the AUMF.
5.30.2007 11:59pm
whackjobbbb:

the "loser pay" system is essentially what is already in place in England.


Agreed, Mr. Cook, and this would be the model for reforms here.


I don't think it would cause attorneys to "feel a cold shiver" but maybe some clients would.


The "clients" won't feel a thing. It'll be the lawyer's surety bond stapled to that complaint, not the "client's". And a smart lawyer will know which cases are good, and which are like the stinkbomb fishing expeditions I've sat through... and been nauseated by (I can share more, if you'd like). The lawyers are clever enough not to throw their surety onto a bad bet. But right now... it costs them little... and the hacks stumble around looking for a winning keno ticket. But if the client wants to pay for that surety instead... fine... if they think they have a good case then that should be no problem. I wish them both luck in their endeavors, and hope they find justice.

But if they illegitimately damage somebody else in the process, they are accountable for that damage. The surety bond will take care of those damages... which too is justice.

Put on a sweater... fix yourself a hot drink... that'll ward off those cold shivers.


And, it is not as uncommon as you think because many contracts already award attorneys fees to the prevailing party.


Yes, but we're talking about the system in general, not the individual contracts that you and I sign every day. We're talking about ALL cases you lawyer types bring on, especially the illegitimate ones, and their blanket cost to our society, and assigning those illegitimate costs to the proper parties... those who bring them about.
5.31.2007 10:20am