My own experience points to a direct, causal effect between the delay to adjudication and whether a case gets filed at all. Some plaintiffs are dissuaded from filing a lawsuit based on the concern that resolution will take years. They want to get on with their lives and not dwell for years on the often-traumatic experience that gave rise to their claims. Other plaintiffs will want to settle quickly, making do with whatever is on early offer, sometimes against advice of counsel to hold out for better resolution later. Another set of plaintiffs will wear down eventually and settle at a discount because of exasperation or desperation. Settling in anticipation of delays that have no relationship to the justness of a cause cannot be considered the correct or right outcome.
No one should be confused about the effect of delay on plaintiffs. Many a mediator has advised my client to weigh the system’s routine delays as a factor favoring settlement. This theme is nearly universal at settlement talks. The less than .1 percent of all plaintiffs who get to trial before a jury and win a verdict still do not even get close to the time value of the money from interest at the pathetically low rates that may be awarded. Delay favors defendants.
Delay can cause a direct and even a daily loss to a plaintiff. I’ve had a client die awaiting his day in court. He went from fully employed to discharged and then to deceased before the system gave him relief. Many more lose out financially for reasons solely attributable to systemic delay. One example is the case of Barachkov v. 41B District Court, No. 2004-cv-73957 (E.D. Mich. 2004). The plaintiffs in Barachkov were tenured public employees who were fired wrongfully without requisite due process. Years after the case was filed, a jury so held. Every single day the plaintiffs’ matter sat unresolved, they were being constitutionally wronged—deprived of a property interest (their livelihoods) without due process. However, in part because of iterative appeals, the case dragged on for years. Worse, the court of appeals reversed the monetary verdict, due to an immunity issue that a previous panel had rejected, leaving reinstatement as the only available remedy. Two of the three clients were past retirement age and the ability to work by then. The delay built into the system deprived these plaintiffs of any real remedy.
With the delays wrought by COVID-19, there is a very real likelihood that individuals wronged today will wait four or more years to have their cases tried. Similar delays also are common in the employment claim process for federal employees. That system has functionally disappeared into prolonged delay. Delay to adjudication must be recognized as a deterrent to achieving justice that falls especially hard on the most vulnerable—those with the least financial cushion to ride out the law’s delay.
A second systemic ill that plagues plaintiff’s-side lawyering is asymmetric and weaponized discovery benefiting defendants. Tinkering with the rules of discovery, often with the primary objective of “curtailing” or “managing” the “costs” thereof, has become a problematic pattern. Limiting discovery, as the amendments to the Federal Rules of Civil Procedure often do, too often systemically favors defendants. The results hamper an employment plaintiff’s ability to prove claims, while benefiting the defendant in whose files most of the proofs reside.
In 1980, 1983, 1993, 2000, and 2006, the Federal Rules of Civil Procedure were amended, including introducing in 1993 presumptive limits on discovery. The renowned civil rights expert and New York University professor Arthur Miller gave a summary before Congress in 2013 when additional restrictions were under consideration: “In the last 25 years, the pretrial landscape in federal courts has literally been littered with stop signs.” It is plaintiffs with civil rights cases who are the ones being stopped.
The changes that emerged in 2015, despite and contrary to his testimony, were met with dismay from the plaintiff’s employment bar. The amendments were again perceived as (and often were pitched or presented directly as) addressing the risk of too much discovery, rather than too little discovery. The narrative that dominated those discussions was all about discovery abuses that would raise the costs of litigation for the party required to make the requested production. Sure enough, the amended rules imposed new limits on discovery.
The prevailing attitude toward discovery is deeply problematic and clearly falls much harder on employee plaintiffs than on employer defendants. The drafters of the 2015 rule changes explicitly recognized one of the major systemic problems with discovery limits, that of information asymmetry:
One party—often an individual plaintiff—may have very little discoverable information. The other party may have vast amounts of information, including information that can be readily retrieved and information that is more difficult to retrieve. In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.
Fed. R. Civ. P. 26 advisory committee’s note to 2015 amendments (emphasis added).
Despite recognition of this discovery asymmetry, the rule drafters provided no remedy and instead worsened the situation.
When I begin a plaintiff’s case, I routinely have just two or three resources: my experience when assessing the would-be client’s account of what occurred, a personnel file, and perhaps a few documents that may be relevant and already in the plaintiff’s possession. That’s it. If I am lucky, a current or former employee with relevant information may be willing to talk with me about key events. I consistently contend with the reality that most or all of the witnesses in the matter will literally be on my opponent’s payroll and therefore under my opponent’s total control. Moreover, most often I am ethically barred from interviewing the key witnesses at all because, as managerial decision makers, they are deemed to be “represented” by the employer’s lawyer. The employer controls whether, when, and how almost all of the witnesses will cooperate with me, short of formal discovery and a deposition.
Meanwhile, the employer holds all documents at issue and can provide its own counsel with access to all of my client’s work product and performance data, as well as all decision makers’ communications and any other pivotal documents. The employer is under no obligation whatsoever to make what it provides to defense counsel equally available to me. Of course, the concept of equal access, save as to a discrete number of genuinely privileged documents, is not unreasonable. After all, it is done in the criminal law all the time. That just is not how civil rights litigation works.
What follows from this asymmetric starting point is that I, as the plaintiff’s lawyer, will need to do far, far more work in discovery to begin to approach what the defendant knew before the case was even filed. I almost always take 10 times the number of depositions as the defendant in employment cases. My interrogatories are limited in number by the rules, while the other side may not even serve any. My document requests will never capture all the items the defendant knows exist and from which defense counsel can pick and choose to frame a defense. In this context, it is apparent why ever-expanding discovery limits disproportionately harm employee claimants and benefit employer defendants.
Other subtleties likewise systematically favor those holding all the information. For example, the very nature of our system of judicial review favors the holder of asymmetric information. Inappropriate discovery requests are visible to all parties and to the court, and thus can be litigated, while the defendant’s cache of all potential evidence is not. A court can rule whether the discovery is abusive and overly burdensome. When automatic discovery limitations are applied, however, that potential cache of evidence is simply made unreachable and invisible to the plaintiff and the court. It is never examined for appropriateness. Neither the plaintiff nor the court has the tools to address discovery of what neither knows exists.
While limiting discovery of necessary proof of claim for plaintiffs, many courts have fallen into a pattern of permitting unconscionable costs, both monetary and psychological, for plaintiffs, as well. When a plaintiff seeks monetary damages for an emotional harm due to an unlawful discharge, the plaintiff’s entire lifetime of activity is too often deemed to be at issue. The claim of emotional harm amounts to a waiver of all state and federal medical privileges. That in and of itself is not the major problem. The problem is that courts regard such waiver not merely as one necessary condition to justify sprawling, intrusive discovery into a plaintiff’s medical history but also as sufficient without more reasoning or explanation. Courts routinely rely on the concept of health privilege waiver to order sweeping production of litigants’ most private information. They virtually never consider any of the concepts used to limit discovery from defendants: burdensomeness, costs, harassment, or proportionality to the needs of the case and its relevant claims. This asymmetry has been judicially created, and it is a functional, real burden imposed by the courts on Congress’s award of emotional distress damages.
Case in point: It is very common for employee-plaintiffs to be compelled to produce a lifetime of mental health records, as well as many years of comprehensive physical health records, in the most run-of-the-mill employment case. Such extensive medical discovery is not remotely limited to cases involving disputes over a disability or medical condition, where medical information may be legitimately in dispute. Rather, such probing discovery into every aspect of a person’s health has become common in cases involving age or race discrimination, whistleblowing, or sexual harassment. Defendants typically argue that they are entitled to “explore” (fish for) theoretic, alternate possible causes of distress in a person’s entire life, when faced with any claim for emotional distress damages arising out of the employer’s alleged wrongdoing. Courts are not, in my experience, truly weighing proportionality in these matters; they more often perpetuate routine prior practice, or even question the plaintiff’s lawyer who is trying to buck the trend.
I recently had a case in which a woman was raped in her 20s. I had voluntarily turned over all treatment records related to the rape, all mental health records for her lifetime, as well as the records of her general practitioner. Nonetheless, the court ordered that she do much more. She was required to turn over all specialists’ records, including from a urologist who treated her for kidney stones, the practitioner she consulted because of a heart murmur, and innumerable other, plainly irrelevant, but highly private medical records.
The depositions that follow such written discovery can be nothing short of outrageous. One of my recent adult female plaintiffs and a victim of sexual assault was deposed on her second grade individualized education plan, as she had trouble transitioning from scissors work to coloring. In a race-discrimination case, my elegant, polished, and professional 60-year-old client was deposed about how—50 years before—her mother had shot her father, to stop a physical attack. The employer defendant obtained this information by successfully arguing that the entirety of the woman’s medical history was fair and not burdensome discovery.
Courts that allow such broad and all-encompassing discovery of the medical histories of plaintiffs are simply not applying the rule of proportionality fairly. Obtaining medical documents is expensive. It is extremely time-consuming. Its only possible purpose is often to fulfill the hope of finding something with a nexus to the dispute at issue. Courts have a great deal of discretion to limit abusive discovery. They should start using that discretion to protect civil rights litigants from the types of indignities and abuses they would never allow to be imposed on a manager of a business or other defense witness. Limits can be imposed without sacrificing legitimate areas of inquiry.
For example, it would be far less expensive and less time-consuming and less invasive to first require defendants to formulate “gatekeeping” interrogatories when fishing for alternate bases for possible emotional distress. Plaintiffs could be asked to disclose recent, major medical illness or injury, to rule out genuine possibilities of those sorts of alternative causes of emotional distress. When there is no history, then there is no justifiable argument for intruding into private medical details in an employment case. The absence of a privilege is simply not a justification in itself to rummage around in people’s private lives.
When considering the “proportionality” of abusive discovery, courts also should explicitly take into account whether a fact—even if it were discovered to be true—would actually ever be used before a jury by the party seeking to discover it. Is it remotely possible that a defense lawyer would highlight to a jury that my female sex assault plaintiff had an education plan during the second grade for difficulty transitioning? Or that my racial discrimination client’s mother was being abused and shot her assailant 50 years earlier? Doing so would inflame any reasonable juror against the defense for raising such irrelevancies, at best. At worst, raising such things would create sympathy for the plaintiff. In my years of practice, I have never seen a defendant seek to use distant or sympathy-arousing facts before a jury for any purpose.
Rule 1 of the Federal Rules of Civil Procedure commits to efficiency in achieving justice, calling for all other rules to be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” A genuine commitment to justice requires enforcing Rule 1 at least as vigorously as Rules 26, 30, 33, and 34, the ground rules of discovery. The tax that extensive medical history discovery imposes is one of the most troubling aspects of my work.
The Effect of Summary Judgment
No account of the ills of the civil justice system through the lens of employment lawyering for plaintiffs would be complete without consideration of the impact of summary judgment. I have had employment cases pending before federal and state courts every single day for over 15 years. In that time, of the cases that have reached the summary judgment stage before settling, I have had only one in which the defendant opted not to file a summary judgment motion. It behooves defendants to try for summary judgment. The odds that summary judgment will be granted are too great for a defendant to skip it, often because of judicially created “doctrines” that summarily deprive plaintiffs of their constitutional right to a jury trial.
One example is the “doctrine” of stray remarks. This theory derives from Justice O’Connor’s opinion in a landmark case, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In less than a paragraph, with little development, Justice O’Connor wrote in dicta that identifying remarks could be so neutral that they would not support a claim of discrimination:
Thus, stray remarks in the workplace, while perhaps probative of sexual harassment, cannot justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff’s burden in this regard. . . . Race and gender always “play a role” in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and about which they may comment in a perfectly neutral and nondiscriminatory fashion. For example, in the context of this case, a mere reference to “a lady candidate” might show that gender “played a role” in the decision, but by no means could support a rational factfinder’s inference that the decision was made “because of” sex.
Id. at 277 (O’Connor, J., concurring in judgment) (internal citation omitted).
Justice O’Connor did not outline any sort of evidence that could be entirely dismissed as irrelevant to the fact finder. Rather, she was making a point about how neutral, identifying references to individuals, such as “the lady candidate,” would not be sufficient alone to establish bias. Moreover, the case itself was later superseded by Congress’s amendments to Title VII in the Civil Rights Act of 1991. Nevertheless, a “doctrine” proliferated from the dicta at “a near exponential” rate in the years following the Price Waterhouse decision. Kerri Lynn Stone, Taking in Strays: A Critique of the Stray Comment Doctrine in Employment Discrimination Law, 77 Mo. L. Rev. 149 (2012).
An example of how this works is found in Fjelsta v. Zogg Dermatology PLC, 488 F.3d 804 (8th Cir. 2007). The court was assessing two opposing and disputed explanations for an employee’s firing. The employer alleged that the employee was not following proper procedures and was insubordinate. The employee alleged pregnancy discrimination caused her separation and that the employer’s explanation was pretextual. The plaintiff had received a recent positive review. Then, when a coworker became pregnant, the office manager said to the plaintiff: “Tanya, you better take precautions so both you girls don’t end up pregnant. We can’t have both nurses gone at the same time.” Shortly thereafter, the plaintiff told management she was indeed pregnant. Days later, she was fired. The court held that the manager’s comment was “stray.” It simply “stated the employer’s obvious self-interest” against having too many pregnant employees, whatever that means. Because the remark “in no way forecast” how the employer would deal with “the adverse situation” of employing too many pregnant employees at once, the court concluded it could be ignored.
As this example reflects, this stray remarks “doctrine” is simply another way of dismissing or trivializing facts specifically imbued with discriminatory attitudes. This “doctrine” is the exact opposite of the principle that courts do not exclude evidence based on arguments that go to weight, rather than to admissibility. A jury, not the judge, is meant to hear and weigh evidence in our legal system. That concept lies at the very heart of our system and is constitutionally protected.
Such judge-made hurdles are particularly challenging because discrimination cases are all about intentions. The Supreme Court has observed that circumstantial evidence speaking to an employer’s intentions must be liberally admitted in employment cases because “there will seldom be eyewitness testimony as to the employer’s mental processes.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (internal quotation marks omitted). If only that assessment were true. In practice, there are almost always eyewitnesses offered regarding an employer’s intentions: The employer’s agents will be happy to claim they had lawful intentions. The challenge plaintiffs’ lawyers generally face is not just finding evidence of an invisible abstraction—state of mind—but affirmatively refuting attestations of good intentions. The stray remarks “doctrine” strikes at the heart of plaintiffs’ cases by excluding and dismissing indicia of biased intentions.
Worse, as deployed in practice, statements that are “too remote” for the court deciding a motion for summary judgment might be anything but for a jury. In fact, the judge in courtroom A might consider a remark direct evidence of discrimination, while the one in courtroom B might discount or exclude the same remark as “stray.”
Reductions in Force and Apt Comparators
Another example of a judicially imposed barrier is the doctrinal evolution requiring that a plaintiff in an age-discrimination case adduce “extra” evidence when the employer has laid the employee off as part of a reduction in force. For example, the Sixth Circuit has, in its own words, “modified” the Supreme Court’s test for showing discrimination by erecting “a heightened standard” to establish a prima facie case of age discrimination. Geiger v. Tower Auto., 579 F.3d 614 (6th Cir. 2009). When an employer’s excuse for a discharge is that it has decided to “reduce” its workforce, then this case law and its kin create a heightened standard. However, the so-called “reduction in force” need be nothing more than the plaintiff’s own, individual separation from employment. Multiple individuals need not be separated jointly. Simply choosing not to backfill a position for a time and calling the discharge a “reduction in force” vaults the standard of proof the plaintiff must establish, though no statute says so. Many a former-management client has explained to me how their employers, aware of this rule, have simply renamed a supposedly “eliminated” position, moved it, or waited one year to reuse a job title, to take advantage of this law.
Courts also have been extremely technical when it comes to comparing peers’ treatment in a workplace. When a plaintiff claims discrimination, part of the prima facie case often requires showing she faced treatment less favorable than the treatment a “similarly situated” peer faced. Otherwise, no matter the nature of the negative conduct identified, it likely cannot be considered. For example, screaming, swearing, threatening, throwing things, slamming hands on tables, and diminishing subordinates are perfectly legal in this country (and terrible, and common). Doing these same things to only one gender or racial group, while treating the other group better, is illegal. However, the courts are all over the map on what an apples-to-apples comparison is. If a boss screams at a part-time Black grocery checker and not at a full-time white shelf stocker, the courts very well may take no notice, reasoning that the two are not sufficiently “similar.”
How “similar” must the peers be? Again, the results often appear outcome-driven rather than doctrinally sound. The Supreme Court said it all: The plaintiff and peer being compared must simply be “similarly situated.” Yet, over time, the fact of the matter is that “similarly situated” has problematically evolved to be “nearly identical in every respect.”
These judicially created “doctrines” raise the costs of the system as a whole by introducing unpredictability. For example, one judge’s “stray” remark may be the evidence that will allow the case to survive summary judgment one courtroom over. Where this occurs and good lawyers are paying attention, they may over-correct and refuse some cases that could prevail, thus allowing a “false negative” for the justice system; at other times, they may take the risk, filing a case that will be dismissed, which is costly for everyone involved. Certainty and clarity in the law help good plaintiff’s lawyers avoid cases that should not be brought, while incentivizing them to act as private attorneys general as to meritorious claims. But I also worry about our next generation. Volatility of this kind presents a serious barrier to entry for young employment litigators, for whom a single loss can be very costly and destabilizing (as well as disheartening).
I don’t blame defense counsel for moving for summary judgment when the development of employment law virtually invites it. Arguably, it would amount to malpractice not to try for summary judgment in many cases, given the defensive weapons that the courts have created for defendants. The problem is not the attempt: The problem is the usurpation of the jury’s role. The right to a jury trial is guaranteed to each one of us under the Seventh Amendment, but it is casually denied to civil rights plaintiffs on a daily basis, not based on Rule 56 itself and not based on any statute democratically enacted.
Clauses in Settlement Agreements
The last great toll on the plaintiff’s lawyer that exposes the failings of our civil justice system comes from the non-disparagement and confidentiality clauses found routinely in settlement agreements. Often, indeed almost always, defendants will insist on confidentiality and non-disparagement clauses in any settlement reached. And often such clauses are also in the best interest of the plaintiff, serving to protect the plaintiff’s reputation in the marketplace. The availability of such clauses facilitates resolution. Yet, from the perspective of society as a whole, confidentiality and non-disparagement clauses allow a wrongdoer to go on with precisely the same course of conduct. Nor is there any cost to be paid in public opprobrium or shame, which are often the best deterrents against future bad behavior.
The prevalence of such clauses inevitably creates tension between the ideal of pursuing justice for the individual client and, at the same time, wider justice for our world. Consider: A client arrives with a horrific, unambiguously provable situation of sexual abuse and degradation from a powerful boss. It is surprisingly common, believe it or not, in these situations for the boss to have actually sent photographs of genitals to the would-be target of unwanted sexual attentions. Even with this photographic proof, if the client is particularly fragile and cannot withstand litigation, resolution without a lawsuit may be the client’s best option. Universally, the wrongdoer will insist on confidentiality and a non-disparagement clause in the settlement agreement.
These are some of the most personally challenging cases I take—cases that we can swiftly resolve with a fantastic outcome for the client, one that the client absolutely insists on taking, with the sole proviso that the settlement be kept confidential. As a plaintiff’s employment lawyer, I have slowly accumulated a cache of disheartening and at times sickening secret information about the businesses and people around me. I expect that every third or fourth billboard I see, or bus-side advertisement, or television commercial, or business magnate, or media darling will be the known racist or the bad actor who viciously fired a dying man to avoid paying a medical bill, or sexually preyed on a subordinate, or ruthlessly discriminated on the basis of age, or retaliated against a whistleblower, or fired a vulnerable person for taking federally protected leave. When I am insistent that we turn the radio away from a song by some well-known and admired singer, or when I refuse to shop at a particular bakery, my family has learned not to ask why. They know that there is a story behind my refusal. They just can’t be told the details. It is a sad silence. When we deliver for a client who insists on settling confidentially, the underlying story can never be told.
A copious amount of ink has been spilled over the questionable social value of enforcing confidentiality clauses in settlement agreements. Surprising bedfellows emerge in favor of such enforcement, as when noted feminist litigator Gloria Allred publicly endorsed confidential settlement agreements in a September 2019 op-ed in the Los Angeles Times. Allred had been criticized for “silencing” victims in the wake of the Harvey Weinstein sex abuse scandal. She wrote that “victims should at the very least have choices when it comes to asserting their legal rights against the person or company that victimized them. We provide victims with legal choices. . . .”
There is no doubt that Allred’s perspective is the correct one through the lens of our existing legal ethics system. Once provided with solid legal advice, the client decides how to proceed, including whether to accept a non-disparagement clause and confidentiality. A lawyer’s legal duty is owed to the individual client, not to society as a whole. However, the tension between my ethical duties to one client and my wider project of bringing about visible justice in the world plagues me.
After years and years of walking this line as best I can, I have no easy answer. I know to a certainty that some of the clients I have helped could not and would not have risked a public lawsuit they certainly would have won, purely out of fear of others’ judgment and potential retaliation. I cannot prefer such a possibility, in which some of the worst wrongdoers remain totally unaccountable. That is a powerful endorsement for retaining the possibility of confidential settlements. It is a counter-argument to those who say there should be none and are enacting bans in state legislatures. Yet, at the same time, it is equally clear that the moral arc of the universe, as Dr. Martin Luther King Jr. described it, clearly bends more slowly toward justice without public awareness.
When it comes to employment law, the rich and powerful are at least as likely to need and benefit from a level playing field as the poor and vulnerable. Employment law is a fantastic leveler of playing fields, because most people work. Chief executive officers are just as likely as janitors to need employment lawyers. The ills that plague this very special area of litigation practice should matter to everyone, because one day anyone could need the legal system to work fairly, efficiently, and without undue costs. It is a privilege to do plaintiff’s employment work, but the privilege affords a front-row seat to how far we still need to go to cure some of the asymmetries created by the legal system to the benefit of defendants and to the detriment of plaintiffs.