Moderated by Tom Sabulis
Recently, the AJC reported on a study that showed it’s nearly impossible to get a jury trial in employment discrimination cases in federal court in Atlanta and north Georgia — judges here tossed more than 80 percent of all cases. Today, one of the lawyers who conducted the research writes about the evisceration of a basic right and another looks at recent Supreme Court decisions reflecting a national trend.
Commenting is open.
By Amanda A. Farahany
The right to a jury trial is the armor that protects us from the government, corporations and each other by defining the standards of conduct acceptable in our society. When we were deprived of the right to trial by jury before, the founding fathers of this country sought independence and waged war.
Fifty years ago, this country demanded equality among races and genders. Again, lives were sacrificed in the fight. Congress, following the peoples’ will, passed the Civil Rights Act of 1964 to outlaw workplace discrimination and in 1991, added the right to a jury trial. But in the last 50 years, courts have stripped people of those civil rights. Despite the erosion of the jury trial, no one today stands up for the 7th Amendment right to a jury trial.
The mission of our law firm’s non-profit arm, Justice at Work, is to preserve this fundamental right. As we saw good cases being dismissed in the federal court that serves Atlanta and the north Georgia region, we decided to study it. The results were startling: 81 percent of discrimination cases were dismissed in full, and 94 percent of the cases had some claims dismissed. Sexual and racial harassment cases were worse: 100 percent of racial harassment and all but one sexual harassment cases were dismissed.
The problem is not isolated to Georgia. Other studies have shown that nationwide, employment discrimination cases are dismissed at higher rates. According to retired federal judge and Harvard Law Professor Nancy Gertner, new judges are trained on “how to get rid of civil rights cases.” Many judges start with the presumption that most of the cases are baseless. Shouldn’t the common goal of the judiciary, Congress, and of lawyers be improving people’s access to justice?
Some argue that strong cases settle, but this fails to address that these cases settle in the shadow of the dismissal rates, for far less than the harm caused. Critics of the study posit that that the reason for the high dismissal rate is poor quality cases brought by disgruntled employees. Some blamed the bad law created by the federal appeals court that oversees Georgia.
To test these theories, Justice at Work studied the Northern District of Alabama, a federal court governed by the same law. Although still too high, only 66 percent of the discrimination cases were fully dismissed by judges. Like Georgia, Alabama has no state laws protecting private employees and is in the same circuit. What explains this difference?
Empirical research reveals that presenting facts, like the results of this study, can eradicate implicit bias. By publishing this information, we hope to begin a dialogue on an issue that impacts every employee in the workplace. Nationally, employees are denied the right to have a jury of their peers determine acceptable conduct in the workplace. Judges, who are appointed for life and are not employees’ peers, are deciding that multiple uses of the “N” word and groping by supervisors is conduct that employees must endure – as a matter of law. Is this the will of the people?
Congress and our Constitution dictated that a jury of our peers should determine acceptable conduct in the workplace. We must return to juries, not judges, making these decisions. In Georgia, the bench and bar should endeavor to determine the basis for the higher dismissal rates. Is it the additional hurdles in place with a two-judge system? Is it the practice of following district court opinions as binding precedent, creating law that is against the intent of Congress?
Georgia’s legislature must also pass laws that protect employees, as federal protections no longer exist. But, more importantly, on a national level, Congress must restore the Civil Rights Act, allowing jurors to again make decisions about what is acceptable in society.
The right to a public trial with an impartial jury is what distinguishes this country from other countries not known for their freedom. To preserve our freedom, we must elevate the fight for this fundamental right.
Amanda A. Farahany is the founding partner of the Atlatna law firm Barrett and Farahany.
By M. Jerome Elmore
Over the last decade, the Supreme Court rendered a number of decisions that significantly impacted the ability of individuals to have their claims heard by a jury, particularly in consumer and civil rights cases.
Among these decisions is the 2007 decision in the case known as Twombly and its 2009 elaboration in the Iqbal case, where the court granted to district court judges the discretion to dismiss cases, prior to discovery, where in the judge’s opinion, the claims were not “plausible,” even though documents and testimony necessary to establish plausibility resided with the defendants, thereby prematurely closing the courthouse door to many plaintiffs.
During the same period, the court limited attorney’s fees for successful plaintiffs’ counsel and increased scrutiny of plaintiffs’ experts. Many observers perceived a growing bias against individuals and in favor of corporations and the government.
If Twombly and Iqbal closed the courthouse door for some plaintiffs, the court’s recent decisions in AT&T Mobility LLC versus Concepcion and American Express Co. versus Italian Colors Restaurant turned the key in the lock. Both involved “class actions,” which combine individual claims into a viable case where the recovery would be too small for individuals to bring solo actions.
Hoping to avoid these class actions, businesses began including in their agreements language requiring that any dispute be arbitrated individually – rather than filed in court as a class action.
Many states refused to enforce these class waivers, finding them unconscionable. But, in 2011, the court in Concepcion held that the Federal Arbitration Act preempted state law that invalidated class action waiver provisions in arbitration contracts as unconscionable. The court directed that these cases be arbitrated individually, as specified in form contracts typically drafted entirely by the defendant.
This summer, the court took this concept a step further, holding in American Express that a contractual waiver of class arbitration was enforceable under the arbitration act even when a plaintiff’s cost of individually arbitrating a federal statutory claim exceeded the potential recovery.
Arbitrations are expensive because the plaintiff must pay private individuals to serve as their court, judge and jury. The plaintiffs urged that there could be no “effective vindication” of their rights absent a class action. But the court rejected that argument, holding that “the FAA’s command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value claims.”
For most claimants, the American Express ruling means that if their claims are subject to an arbitration agreement that contains a class action waiver, they will be relegated to an individual arbitration even if the cost of the arbitration and the amount of potential recovery make it economically unfeasible to proceed. In most cases, that means a suit will not be brought even if the wrong is widespread. Worse, private enforcement of the law in consumer and civil rights cases is often the only practical redress available, due to a lack of funding by government agencies. These cases essentially shield corporate wrongdoers from prosecution for violations of the law that affect many consumers, but do not inflict enough harm on any one individual to justify an arbitration.
To be sure, unregulated class action arbitrations with little judicial review may threaten to violate defendants’ due process rights. Yet foreclosing any access to the courts or any other meaningful relief in these cases cannot be the answer.
The social contract that binds us as citizens incorporates the principle inscribed above the door to the Supreme Court – “Equal Justice Under Law.” Individuals must not perceive that their access to justice is unnecessarily restrained in favor of corporations or the government. We must understand the cumulative impact of recent cases and find legislative or judicial solutions to counteract the incremental loss of the constitutional right to jury trials.
M. Jerome Elmore, a partner with Bondurant Mixson and Elmore, teaches Class Actions at Emory Law School.