Frivolous Floodgate Fears

When rejecting plaintiff-friendly liability standards, courts often cite a fear of opening the floodgates of litigation. Namely, courts point to either a desire to protect the docket of federal courts or a burden on the executive branch. But there is little empirical evidence exploring whether the adoption of a stricter standard can, in fact, decrease the filing of legal claims in this circumstance. This Article empirically analyzes and theoretically models the effect of adopting arguably stricter liability standards on litigation by investigating the context of one of the Supreme Court’s most recent reliances on this argument when adopting a stricter liability standard for causation in employment discrimination claims. In 2013, the Supreme Court held that a plaintiff proving retaliation under Title VII of the Civil Rights Act must prove that their participation in a protected activity was a but-for cause of the adverse employment action they experienced. Rejecting the arguably more plaintiff-friendly motivating-factor standard, the Court stated, “[L]essening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer[s], administrative agencies, and courts to combat workplace harassment.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 358 (2013). And over the past ten years, the Court has overturned the application of motivating-factor causation as applied to at least four different federal antidiscrimination statutes. Contrary to the Supreme Court’s concern that motivating-factor causation encourages frivolous charges, many employment law scholars worry that the heightened but-for standard will deter legitimate claims. This Article empirically explores these concerns, in part using data received from the Equal Employment Opportunity Commission (EEOC) through a Freedom of Information Act (FOIA) request. Specifically, it empirically tests whether the adoption of the but-for causation standard for claims filed under the Age Discrimination in Employment Act and by federal courts of appeals under the Americans with Disabilities Act has impacted the filing of discrimination claims and the outcome of those claims in federal court. Consistent with theory detailed in this Article, the empirical analysis provides evidence that the stricter standard may have increased the docket of the federal courts by decreasing settlement within the EEOC and during litigation. The empirical results weigh in on concerns surrounding the adoption of the but-for causation standard and provide evidence that the floodgates argument, when relied on to deter frivolous filings by changing liability standards, in fact, may do just the opposite by decreasing the likelihood of settlement in the short term, without impacting the filing of claims or other case outcomes

The Use and Misuse of Econometric Evidence in Employment Discrimination Cases

Statistical analyses play an important role in employment discrimination cases, as the Supreme Court has long recognized. Regression analysis can help a plaintiff establish a claim of discrimination under Title VII of the Civil Rights Act of 1964 by showing that, even when controlling for relevant characteristics, individuals of a certain class were treated differently than other employees or applicants. It can also help a defendant rebut such a claim by showing that differential treatment was due to characteristics other than being a member of a protected class. Yet, too often, opposing experts present invalid rebuttal evidence that the jury or judge overweighs. Opposing experts routinely criticize three aspects of the regression: the regression’s explanatory variables, its sample size, and its statistical significance. Even though these factors affect the reliability of the regression results only in very limited circumstances, the judge or jury is often persuaded by them and find for the defendant. As a result, valid regression analyses do not perform the critical work that they should in employment discrimination cases. Our own statistical analyses of seventy-eight Title VII employment discrimination cases finds that regression analyses do not substantially increase the plaintiff’s likelihood of prevailing at trial and that if the court recognizes any of these common critiques, the plaintiff is much less likely to prevail. The severe consequences of such critiques make it very important for the court and opposing experts to recognize when these critiques are without merit. We propose that courts adopt a peer-review system in which court-appointed economists, compensated by each party as a percentage of the total payment to econometric expert witnesses, review econometric evidence before the reports are submitted to the judge or jury

The Use and Misuse of Econometric Evidence in Employment Discrimination Cases

Experts routinely criticize three aspects of regression analyses presented by the opposing party in employment discrimination cases: omitted explanatory variables, sample size, and statistical significance. However, these factors affect the reliability of the regression results only in very limited circumstances. As a result, valid regression analyses do not provide the critical guidance that they should in employment discrimination cases. Our own statistical analyses of seventy-eight Title VII employment discrimination cases find that merely raising these critiques, even if spurious, reduces plaintiffs’ likelihood of prevailing at trial. We propose that courts adopt a peer-review system in which court-appointed economists, compensated by each party as a percentage of the total payment to econometric expert witnesses, review econometric evidence before the reports are submitted to the judge or jury