Is proving employment discrimination more difficult under the federal rules of evidence? An article by the New York Times entitled Chief Justice’s Report Praises Limits on Litigants’ Access to Information suggests so. Let’s take a closer look. In doing so, it’s important to note that employees who bring whistleblower claims, unpaid wages actions (including overtime and commission claims), and who are retaliated against for using medical leave likely face the hurdles.
As discussed in the 2015 Year-End Report on the Federal Judiciary by Justice Roberts, the amended Federal Rule of Civil Procedure (FRCP) 26(b)(1) now requires discovery requests to be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” In contrast, Massachusetts Rule of Civil Procedure (MRCP) 26(b)(1) currently imposes no such requirement.
While Justice Roberts applauds “proportionality” as a means to more efficiently administer the discovery process, the practical impact remains to be seen. With respect to employment discrimination cases, the discovery process provides the employee with the opportunity to strengthen her case. Under the revised rule, however, employers will have another basis on which to object in producing information and documents. As one might expect, this may lead to more motion practice with employers seeking protective orders and employees filing motions to compel. It’s not difficult to imagine the development of an entire body of case law interpreting what exactly “proportionality” means – a likely a fact-intensive analysis.
Addtionally, the factors contained in FRCP 26(b)(1) to define “proportionality” create layers of new questions. For example, “the importance of the issues at stake” factor is vague. Does this mean that more discovery will be afforded to a plaintiff who is pursuing an issue of first impression? If so, what is the baseline of discovery to which a plaintiff is entitled? The “amount in controversy” requirement is more straightforward, but unfortunately devalues cases brought on behalf of economically disadvantaged, low wage earners most in need of legal recourse.
Such workers may be more likely to be mis-classified as exempt employees and improperly denied overtime pay; suffer sexual harassment; and discriminated against when faced with a disability or need for medical leave. The amount in controversy in such cases will pale in comparison to, for instance, patent infringement litigation between two major corporations. Using a dollar figure as a proxy for granting or denying discovery requests is too simplistic and unfairly favors business disputes over employment discrimination and other civil rights cases.
As practitioners, we often hear of federal court bias against civil rights cases. In her article Losers’ Rules (Yale Law Journal), for example, Professor Nancy Gertner recounts her experience as a long-time United States District Judge and the institutional prejudice against such cases:
At the start of my judicial career in 1994, the trainer teaching discrimination law to new judges announced, ‘Here’s how to get rid of civil rights cases,’ and went on to recite a litany of Losers’ Rules. Indeed, he was right.
Sometimes federal courts themselves, perhaps unwittingly, make their biases known in published opinions. In Riordan v. Kempiners, for instance, the Seventh Circuit theorized that a biased individual will behave logically and only act on his or her discriminatory beliefs with respect to average and below-average employees:
Only the very best workers are completely satisfactory, and they are not likely to be discriminated against – the cost of discrimination is too great. The law tries to protect average and even below-average workers against being treated more harshly than would be the case if they were of a different race, sex, religion, or national origin ….
Thus, it stands to reason, the Seventh Circuit assumes that the employment discrimination cases before it are brought by mediocre employees – a broad generalization, to say the least.
Beyond anecdotes, statistics indicate a broad phenomenon of federal judicial bias against employment discrimination claims. In a study entitled Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? (Harvard Law & Policy Review), for instance, researchers revealed that employees who bring employment discrimination claims fare the worst on appeal compared to any other plaintiff. Remarkably, federal appeals courts reversed employment discrimination verdicts in the employee’s favor 41% of the time, compared to just 9% where the employer prevails.
Overall, given the history of hostility by federal courts toward employment discrimination claims, the amendment to FRCP 26 and its potential to hinder employees from conducting adequate discovery comes as no surprise. A more diverse federal judiciary with “nontraditional” backgrounds could be a vital first step toward leveling the playing field.
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