Judges, Not Juries, Are the Employer's Best Friends: Employment Law Alert? Issue 6

We read a great deal about runaway juries and massive jury awards against employers in discrimination cases. The explosive growth of employment practices liability insurance is based in large part on these employer financial concerns. But, what are the facts? If only there were a statistical study that could test the validity of these employer shibboleths. Such a study could also guide employers to adopt alternative dispute resolution strategies and/or settlement authorizations to avoid putting their corporate treasuries on the line within the four corners of a jury room.

There is statistical guidance for employers who are assessing their potential exposure should their discrimination cases go to a jury. A September 1999 report of the Bureau of Justice Statistics, a statistical agency of the U.S. Department of Justice (“Civil Trial Cases and Verdicts in Large Counties, 1996”) provides a wealth of statistical information. For the first time, this survey covers, as a separate category, employment discrimination trials. Those cases did not merit a separate category when the last survey was conducted in 1992. The survey also tracks separate trials involving “other employment disputes,” which are wrongful termination and breach of contract actions. The total number of employment discrimination trials (311) slightly exceeded the total number of other employment dispute trials.

This survey covered 15,613 state court civil trials in the nation’s 75 largest counties during calendar year 1996. All civil trials were covered including automobile, medical malpractice, contract and real estate cases. The overall statistics in all 15,613 cases show plaintiffs won fewer jury trials (48.7%) than non-jury or bench trials (61.6%). Moving to the “other employment dispute” category produces a virtual dead heat between plaintiff jury trial victories (53.4%) and plaintiff bench trial victories (52.3%). The statistical surprise occurs when we move to the new employment discrimination trial category. Plaintiffs won 47.6 % of jury trials in employment discrimination cases, virtually the same as their overall win percentage (48.7%) in all civil jury trials. The surprise is that plaintiffs won only 26% of the employment discrimination cases tried to judges instead of juries, far below their overall percentage (61.6%) in all civil bench trials. Interestingly, that 26% bench trial success rate is the second lowest plaintiff success rate among the survey’s 19 categories. It is surpassed only by eminent domain bench trials where plaintiffs fighting government property seizures are expected to lose.

The next lesson from this statistical survey is that, if you are unfortunate enough to go to trial with your employment discrimination case, you run the risk of a significant adverse jury verdict. This confirms what employers suspected all along. For all 15,613 civil trials, the median judgment where plaintiffs prevailed was $33,000. In employment discrimination cases, however, the median judgment was $200,000, $250,000 in jury trials and $75,000 in bench trials. That $200,000 median for all employment discrimination trials is not much lower than the $286,000 median for medical malpractice trials won by plaintiffs.

The dollar comparisons bear out the dangers of a jury trial. For all 15,613 civil trials resulting in a plaintiff’s judgment from either a jury or a judge, 15.9% exceeded $250,000 and 5.5% exceeded $1,000,000. For our new employment discrimination trial category, 43.1% of those jury and judge judgments exceeded $250,000 and 11.6% exceeded $1,000,000, nearly three times as many. The statistics for jury verdicts for discrimination plaintiffs alone excluding bench judgments are even worse: 48% of those jury verdicts exceeded $250,000 and 14.1% exceeded $1,000,000.

The final lesson from this statistical study involves punitive damages. Employers do face a greater chance of larger punitive damage awards in employment discrimination cases. For all 15,613 civil trials, 4.5% of the prevailing plaintiffs were granted punitive damages. Prevailing discrimination case plaintiffs, on the other hand, were given punitive damages in 19.4% of their cases. That is the second highest punitive damage percentage among the survey’s 19 categories. It is surpassed only by punitive damages awarded in intentional tort cases.

Punitive damage judgments in employment discrimination cases are not only more frequent, they are also larger. The median punitive damage judgment for a prevailing discrimination case plaintiff was $205,000. Punitive damages in excess of $250,000 were granted in 49.4% of those cases. Punitive damages in excess of $1,000,000 were granted in 8% of those cases.

Geography can also be an important consideration. Let us examine the plaintiffs’ victory percentages in all civil jury trials in certain counties among the nation’s 75 largest counties featured in this survey. These statistics are for all plaintiff civil jury trial victories, not just employment discrimination jury trials. We chose counties in or near Nixon Peabody’s 11 offices.

Pct. of Plaintiff County Jury Trial Victories 1. Norfolk, MA 21.7% 2. Worcester, MA 27.1% 3. Middlesex, MA 28.7% 4. Essex, NJ 34.1% 5. Suffolk, MA 36.3% 6. Middlesex, NJ 36.6% 7. Essex, MA 40.9% 8. Bergen, NJ 53.0% 9. Fairfax, VA 54.6% 10. New York, NY 55.9% 11. Hartford, CT 58.7% 12. Fairfield, CT 68.0%

The national plaintiff-win average for all 75 largest counties in civil jury cases is 48.7%.

A final interesting statistic is that the median jury damage verdict in all civil cases in the twelve counties listed above varies, with only two exceptions, from $17,000 (Norfolk, MA and Fairfax, VA) to $46,000 (Bergen, NJ). The two exceptional counties with considerably higher median jury damage verdicts are Middlesex, MA ($91,000) and, of course, New York, NY ($212,000). New York County leads the 75 counties by a wide margin; the second highest median jury verdict in civil cases is Philadelphia with a $150,000 median. It turns out W.C. Fields was speaking for New York County trial defense lawyers as well when he said on his tombstone “I’d rather be in Philadelphia.”

In sum, the statistical survey confirms employers’ worst fears about employment discrimination trials. First, employers are much better off trying those cases to judges rather than juries. Second, if that fails and the case is tried to a jury, the chances of, first, a plaintiff’s verdict and, second, a substantial dollar verdict for a discrimination plaintiff are several times better (for the plaintiffs, that is) than a trial before a judge. Third, this is particularly true should the prevailing discrimination plaintiff recover punitive damages. Employers should stay away from juries in employment discrimination cases. As Casey Stengel used to say, long before the Department of Justice finished this statistical survey, “You can look it up.”