Outing Outcomes: an Empirical Study of Confidential Employment Discrimination Settlements
Minna J. Kotkin
Brooklyn Law School
Brooklyn Law School, Legal Studies Paper No. 60
1st Annual Conference on Empirical Legal Studies Paper
Washington and Lee Law Review, Vol. 64
Recent empirical studies on outcomes in employment discrimination litigation all reach the same conclusion: plaintiffs have little chance of success. But these studies rely on summary judgment decisions and trial verdicts, gleaned from reported opinions, electronic docket entries, and data collected by the Administrative Office of the Courts, and they acknowledge that this is just the tip of the iceberg. Until now, settlement outcomes, which account for 70% of case resolutions, have been rendered invisible because of confidential settlement agreements. Along with the vanishing trial syndrome, secret settlements have created an information vacuum, skewing the public policy discourse about employment discrimination litigation, and leaving the judiciary, litigants and attorneys without benchmarks by which to negotiate resolutions.
This article reports on an anonymously coded database of 1170 cases settled by federal magistrate judges in Chicago over a six year period ending in 2005, and provides the first detailed analysis of settlement outcomes. These data reveal that employment discrimination litigation, which accounts for over 40% of the database, with a mean recovery of $54,651, is neither jeopardizing American business nor resulting in undeserved windfalls for disgruntled employees. Plaintiffs are achieving a reasonable degree of success, measured against their lost wages. The Chicago project should be replicated and refined to provide an even more complete picture of settlement outcomes.
Number of Pages in PDF File: 64
Keywords: employment discrimination, settlement, litigation
JEL Classification: K41, K12
Date posted: July 6, 2006