ABF releases new book

A book by three American Bar Foundation (ABF) scholars illustrates how employment civil rights litigation entrenches patterns of discrimination in and out of the workplace. 

“Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality” offers a comprehensive analysis of employment civil rights litigation in the U.S. and gives voice to real plaintiffs.

Co-authors Ellen Berrey, Robert L. Nelson, and Laura Beth Nielsen examined 1,788 cases filed between 1988 and 2003 and conducted 100 interviews with plaintiffs, plaintiffs’ attorneys, employer defendants, and defense attorneys.

“Rights on Trial” emphasizes how workplace discrimination based on race, gender, age and disability persists. The authors find the adversarial nature of litigation places plaintiffs at a disadvantage from the outset. Legal recourse is rare, but plaintiffs who do file legal charges often experience substantial challenges in navigating litigation, including mistreatment by their colleagues and management, difficulty securing legal representation and extensive personal and financial burdens – including job loss – as a result of the case. Meanwhile, employers manage litigation in ways that minimize costs and insulate workplaces from change, particularly through reliance on small settlements.

The research finds 23 percent of workplace discrimination cases are filed without a lawyer or pro se. Cases filed pro se are dismissed at a rate of 40 percent, compared to 11 percent for cases with attorneys.
These disadvantages are exacerbated for people of color; African American plaintiffs are 2.5 times more likely to file claims without a lawyer and Asian American and Latino/a plaintiffs are 1.9 times more likely to file pro se compared to their white peers.

“Rights on Trial” is the culmination of more than a decade of research examining the U.S. model of employment civil rights litigation. In February 2017, the EEOC cited the research contained in “Rights on Trial” as a basis for changes in its 2017-2021 Strategic Enforcement Plan. This research was supported by the American Bar Foundation, the National Science Foundation, the Searle Foundation, the Center for Advanced Study in the Behavioral Sciences and the Ford Foundation.

For additional information, visit rightsontrial.com.