Secrecy in Context: The Shadowy Life of Civil Rights Litigation

This article explores how secrecy has come to pervade employment discrimination litigation as a consequence of procedural and substantive changes in the law over the last twenty-five years. In contrast to products liability and toxic tort claims, where secrecy can endanger the public health and safety, secrecy in the discrimination context has a less dramatic impact and thus, has attracted little attention. But when very few discrimination claims end in a public finding of liability, there is a significant cumulative effect, creating the appearance that workplace bias is largely a thing of the past. The trend towards secrecy can be traced to several developments. First, by allowing arbitration of discrimination claims, the Supreme Court signaled that the deterrence goals of discrimination legislation do not take precedence over the values of arguably more efficient and expedient private resolutions. Second, FRCP amendments that mandate judicial management of the discovery process and eliminate discovery product filing changed the default position from transparency to secrecy in the pre-trial stages of litigation. Finally, the federal courts\u27 emphasis on facilitating resolutions and contingent fee compensation for plaintiffs\u27 attorneys have contributed to the ubiquity of confidential discrimination settlements. Sunshine laws prohibiting or restricting confidentiality agreements are not drafted broadly enough to encompass employment discrimination cases, but EEOC rulemaking could require judicial oversight of secret settlements. Absent such regulation, aggregate data on employment discrimination settlements should be collected and made publicly available to assist litigants, lawyers and the judiciary, and to inform the public discourse on workplace bias

Diversity and Discrimination: A look at Complex Bias

Multiple claims have become a fixture of employment discrimination litigation. It is common, if not ubiquitous, for court opinions to begin with a version of the following litany: \u27Plaintiff brings this action under Title VII and the ADEA for race, age, and gender discrimination. Equal Employment Opportunity Commission (EEOC) statistics show exponential growth in multiple claims in part because its intake procedures lead claimants to describe their multiple identities, at a time when they have little basis upon which to parse a specific category of bias. But increased diversity in workplace demographics suggests that frequently, disparate treatment may in fact be rooted in intersectional or complex bias: although stereotypes for women have somewhat dissipated, those for older African American women still hold sway. Complex bias provides a counternarrative to the currently in-vogue characterization of workplace discrimination as subtle or unconscious. Despite the common sense notion that the more different a worker is, the more likely she will encounter bias, empirical evidence shows that multiple claims-which may account for more than 50 percent of federal court discrimination actions-have even less chance of success than single claims. A sample of summary judgment decisions reveals that employers prevail on multiple claims at a rate of 96 percent, as compared to 73 percent on employment discrimination claims in general. Multiple claims suffer from the failure of courts and intersectional legal scholars to confront the difficulties inherent in proving discrimination using narrowly circumscribed pretext analysis. Applying sex-plus concepts does not address the underlying paradox inherent in the proof of these cases: the more complex the claimant\u27s identity, the wider must be cast the evidentiary net to find relevant comparative, statistical, and anecdotal evidence. Overcoming the courts\u27 reluctance to follow this direction requires the development and introduction of social science research that delineates the nuanced stereotypes faced by complex claimants

Secrecy in Context: The Shadowy Life of Civil Rights Litigation

This article explores how secrecy has come to pervade employment discrimination litigation as a consequence of procedural and substantive changes in the law over the last twenty-five years. In contrast to products liability and toxic tort claims, where secrecy can endanger the public health and safety, secrecy in the discrimination context has a less dramatic impact and thus, has attracted little attention. But when very few discrimination claims end in a public finding of liability, there is a significant cumulative effect, creating the appearance that workplace bias is largely a thing of the past. The trend towards secrecy can be traced to several developments. First, by allowing arbitration of discrimination claims, the Supreme Court signaled that the deterrence goals of discrimination legislation do not take precedence over the values of arguably more efficient and expedient private resolutions. Second, FRCP amendments that mandate judicial management of the discovery process and eliminate discovery product filing changed the default position from transparency to secrecy in the pre-trial stages of litigation. Finally, the federal courts\u27 emphasis on facilitating resolutions and contingent fee compensation for plaintiffs\u27 attorneys have contributed to the ubiquity of confidential discrimination settlements. Sunshine laws prohibiting or restricting confidentiality agreements are not drafted broadly enough to encompass employment discrimination cases, but EEOC rulemaking could require judicial oversight of secret settlements. Absent such regulation, aggregate data on employment discrimination settlements should be collected and made publicly available to assist litigants, lawyers and the judiciary, and to inform the public discourse on workplace bias