Frivolous Employment Discrimination Litigation: Myth or Reality?
Calvasina, Gerald E., Calvasina, Richard V., Calvasina, Eugene J., Journal of Legal, Ethical and Regulatory Issues
Numerous reports in the popular press have alluded to a rise in the number of frivolous lawsuits being filed in the United States. Employers have lamented for years that the majority of employment discrimination lawsuits have also been frivolous. If these assertions are true, frivolous litigation could be responsible for numerous negative consequences for our legal system and economy.
The purpose of this paper is to assess the nature of frivolous litigation and to assess to what extent it is in fact a problem in the context of employment discrimination litigation. The paper focuses on Title VII of the 1964 Civil Rights Act and Americans with Disabilities Act (ADA) court decisions where allegations of frivolous litigation have been raised.
Numerous recent reports in the popular press allude to a rise in the number of frivolous lawsuits being filed in the United States and the impact on our judicial system and economy (Abraham, 1998; Winston, 1999; Shapiro, 1999; Chain Store Age, 2000; Hayes, 2001). Quotes like, "We have a legal system today that allows a sort of extortion to exist", and "All too often, terminated employees will retaliate against their former employers by bringing frivolous discrimination lawsuits" are plentiful (Shapiro, 1999; Myers, 1997).
The negative results of frivolous suits are alleged to be numerous. They are reportedly clogging our court systems and lead to judicial delay and high court costs. In addition there are allegations of negative effects on our economy. Groups like Michigan Lawsuit Abuse Watch list negative economic side effects that include the increased cost of Girl Scout cookies and little league baseball insurance, and job-loss in states where expanded liability has decreased productivity and job creation (http://www.mlaw.org/didyouknow.htm).
The purpose of this paper is to assess to what extent frivolous litigation is in fact a problem in the context of employment discrimination litigation. The paper focuses on Title VII and ADA court decisions where allegations of frivolous litigation have been raised.
IS THERE REALLY A PROBLEM?
At the same time the popular press has been raising the volume of the debate on the issue, scholarly publications paint somewhat of a different picture of the situation. Robert G. Bone concluded in his 1997 University of Pennsylvania Law Review article, "We know remarkably little about frivolous litigation. Reliable empirical data is extremely limited, and casual anecdotal evidence highly unreliable"(Bone, 1997). Chris Guthrie, citing the work of Herbert M. Kritzer, noted "the frivolous case debate is sustained primarily through anecdotes" and "there is no evidence of large numbers of frivolous cases involving plaintiffs who sue solely to extort a settlement up to the amount of defendants costs of responding"(Guthrie, 2000).
Bone attributes the lack of empirical work on frivolous litigation to a number of reasons.
One obstacle is the lack of a clear and generally accepted definition of a "frivolous suit". Another is the tricky problem of how to determine whether any given suit is frivolous. This problem is particularly acute because the most obvious source of information--judicial determinations of frivolousness--is not likely to represent the case population as a whole, and especially not cases that end in settlement. Finally, researchers cannot easily obtain settlement data because parties often keep settlements confidential, making it very difficult to test ... one of the most serious effects of litigation: the adverse impact on settlement of legitimate suits (Bone, 1997).
While there is little empirical support for the existence of a plethora of frivolous lawsuits, the perception that it is a problem is wide spread. John Lande's survey of business lawyers and executives in 1998 reported that 53 percent of inside counsel and 14 percent of outside counsel in his survey believed that more than half of the law suits filed against businesses are frivolous (Lande, 1998). …