Posted On: February 20, 2009 by Mark Bello of Lawsuit Financial Corp.

Lilly Ledbetter Fair Pay Act: Good News For Victims of Employment DIscrimination?

I recently came across an article in the Wall Street Journal that may be good news for victims of employment discrimination. Last month, President Obama signed the Lilly Ledbetter Fair Pay Act into law. While this is certainly a positive step, recent and long term trends suggest that discrimination victims are not getting a fair shake in America's courtrooms. According to the article, recent studies show that discrimination victims suing in federal court, lose at a higher rate than other types of litigants. Studies also show that judges are also quicker to toss these cases out of court, pre-trial.

As reported previously at this location, employee and plaintiff attorneys are hoping for a better legal climate for discrimination claims in the new Obama administration. The legislation recently signed into law will make it easier to sue for gender, race or age based discrimination by extending deadlines for suit filings.

The article indicates that only 15% of plaintiffs won job-discrimination cases in federal courts, from 1979 to 2006. Thus, an improvement in standing does not necessarily mean that a litigant will receive better treatment in federal court. In other types of cases, plaintiffs' win rates are 51%, according to a recent Harvard Law & Policy Review study. Plaintiff attorneys have become very cautious about accepting discrimination case, and, as such, case filings have declined considerably in the new century. There are many reasons for this, but one reason is that good cases are settled. Employers know when they are in trouble; they settle the cases that they could get hammered on and try the questionable ones. Questionable cases in federal court are easy targets for dismissal. Discrimination is often a "he said/she said" controversy; credibility is a very important issue in resolving these cases.

It is troubling, though, that plaintiffs have found judges increasingly willing to prematurely dismiss (on motion to dismiss or summary disposition motion) plaintiffs' cases before they able to conduct discovery to support their cases. The article indicates that a recent report by the Federal Judicial Center found that judges, nationwide, have terminated 12.5% of employment discrimination cases before the cases reach trial. That compares to only 3% of contract cases and 1/7% of personal injury and property loss cases.

David Hittner, a U.S. District Court judge in Houston, opines, in the article, that employers have become more careful to avoid discriminatory behavior and are better at documenting their reasons behind firings. An extensive record that the employee was not doing his/her job well will support a reason for the termination, even if there may have been discrimination.

The purpose of the study cited in the article was to analyze the impact of the U.S. Supreme Court's 2007 ruling in Bell Atlantic Corp. v. Twombly, authorizing federal judges to dismiss cases if plaintiffs could not detail enough facts in their initial complaints to state a "plausible" claim. This "plausible claim" standard was higher than the standard that previously existed.

So, hopefully, these cases will proceed on a more level playing field under the recent legislation. Despite the substantial risk of a negative outcome in these cases, Lawsuit Financial has provided litigation funding for victims in a significant number of employment discrimination cases and will continue to evaluate these cases for legal funding. If you have been a victim of employment discrimination, or have been injured and filed an auto accident case, premises liability/slip & fall case, medical malpractice case, airplane crash case, construction accident case, or any other personal injury case, please call Lawsuit Financial, toll free, at 1-877-377-SUIT or visit us on the web at www.lawsuitfinancial.com. Lawsuit Financial provides non-recourse lawsuit funding for victims who have pending lawsuits need help to pay important obligations like mortgage, rent or car payments, or to prevent foreclosure or repossession. The call and the advice are free. Call us today.