The perceived unfairness in employment discrimination lawsuits

A new study by three sociologists examines how both sides in employment discrimination lawsuits feel about the process:

“We wanted to hear, from actual people involved in employment discrimination lawsuits, what litigation was like for them,” says Berrey, assistant professor of sociology at UB and a faculty affiliate of the American Bar Foundation (ABF). “There was one point that nearly everyone agreed on: that litigation is unfair.

“Beyond that, their experiences couldn’t have been more different. For plaintiffs, litigation is expensive and can bring real personal hardships. Many end up divorced, depressed, even bankrupt. Employers do not like litigation either, but they usually have the resources and expertise to keep these cases under control.”

The study, “Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation,” published in Law and Society Review, is based on a national random sample of employment civil rights cases and 100 interviews with plaintiffs, defendants, and lawyers who were involved in discrimination suits. Law and Society Review is considered the most-prestigious law and social science journal in the U.S…

“We have a fundamental problem with the legal system,” says Hoffman. “The primary way that the law deals with discrimination at work — litigation — is considered unfair by both parties, and winning in litigation requires considerable financial and legal resources.”

How legitimate is a process if both sides perceive it to be unfair? Of course, the rulings are enforceable so that helps make it legitimate…

I’ve wondered about this a few times recently: how often are court cases “won” or “lost” because of available financial resources? Certain parties would be able to withstand a long trial so does this suggest that the real “burden of proof” is sometimes less about evidence or a strong case and more about outlasting the other side? This also reminds me of something I read recently that suggested most criminal cases in the US tend to be plea bargained because the government(s) could not afford all of the full trials. I understand the interest in limiting “frivolous” lawsuits but at the same time, does the need to have some wealth to wage these lawsuits limit the ability of discriminated employees to win their case in court?

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