Uncertain Justice: Litigating Claims of Employment Discrimination in the Contemporary United States

Abstract

This article examines the broad mass of employment discrimination claims brought in federal court between 1988 and 2003. Unlike much scholarship, which studies a small proportion of cases that generate published opinions, we analyze a large random sample of cases. Examining a representative sample of cases allow us to better assess law's role in processing claims of discrimination and its relationship to theories of rights mobilization, organizations, and disputing. Our qualitative and quantitative data capture the dynamics of the stages of litigation. We examine the social and legal determinants of outcomes at each stage. Analyzing discrimination litigation as a sequence of alternative outcomes reveals aspects of antidiscrimination law in action that have gone unexamined in previous research. This new approach suggests that the system of employment discrimination litigation reflects the operation of social advantage and typically provides either no or modest remedies for plaintiffs. While employment discrimination litigation grew dramatically in the 1990's, it did so primarily as a system of individualized claims. Thus employment civil rights reflect many of the contradictions of the American civil justice system. A small number of cases produce large awards and have far reaching consequences for employment practices. The typical plaintiff receives neither their day in court nor a meaningful remedy. The uncertain character of outcomes drives parties to reach a settlement.