In December 2008, Harvard Law and Policy Review, the official journal of the American Constitution Society for Law and Policy (ACSLP) will publish a study showing that federal courts disfavor employment discrimination cases, and that plaintiffs with employment discrimination claims are "forswearing" federal court.
Using data from the Administrative Office of the U.S. Courts, Stewart J. Schwab and Kevin M. Clermont, both of Cornell Law School, found that from 1999-2007, the number of employment discrimination cases filed dropped 37%. The steepest decline in case filings was in the 11th Circuit, followed by the 5th, 4th, 8th and 6th Circuits.
The authors also found that employment discrimination cases fare much worse that other kinds of cases. They reported a win rate of only 15% for these cases compared to 51% for other kinds of cases. They also concluded that employment plaintiffs who lose at trial do not fare well on appeal. Their win rate is under 9%. This is significantly less than the 41% reversal rate for other appellants during the period studied.
The authors quoted one commentator who suggested that the reason behind the downturn in case discrimination filings, may be "the largely negative experiences of many plaintiffs and their lawyers. …