There is a sentiment in the employment law community, particularly those who practice on the employee side, that federal courts have grown increasingly hostile to employee rights cases. The empirical data compiled over the last three decades seems to support this sentiment. Plaintiffs who bring employment discrimination claims in federal court are far less likely to prevail than plaintiffs in non-employment cases. According to a 2009 Harvard Law and Policy Review article titled “Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?” since 1979, the plaintiff win rate for employment cases (15 percent) was lower than non-employment cases (51 percent). For cases going to trial, employment discrimination plaintiffs (28.47 percent) won less often than other plaintiffs (44.94 percent). With respect to appeals, employees succeeded only 9 percent of the time, while employers won 41 percent of appeals.
These startling numbers, as well as the general lack of professional diversity on the federal bench, got this writer to wondering what kind of justice President Obama’s nominee for the U.S. Supreme Court would be, as it relates to employee rights. As many know, Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit was nominated for the high court following the death of U.S. Supreme Court Justice Antonin Scalia in what many predict will be a test of political might. Notwithstanding the fact that Garland’s nomination may never even get to a Senate vote during this president’s term, his track record on matters affecting labor and employment law is noteworthy.
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