Employee Rights and Employment Policy Journal

Paul Mollica (1997) recently studied employment discrimination cases from 1992-1996 in the Seventh Circuit of the U.S. Courts of Appeals.  He suggested further research on other courts of appeals, as well as testing whether various bases for discrimination complaints (e.g., age versus race) were fungible.  Data from an earlier study (Werner & Bolino, 1997) were used to address these two issues.  First, published appeals court opinions from 1980-1995 were analyzed where performance appraisal was an issue in an employment dis-crimination case.  In these data, there was wide variation in the num-ber of cases brought to appeal by circuit, as well as in the percentage of cases decided in favor of plaintiffs versus defendants.  The circuits most likely to side with defendants were the First, Fourth, Fifth, Ninth, and Tenth Circuits.  In contrast, plaintiffs were more likely to prevail in the Second, Third, and District of Columbia Circuits.  These data were also divided into two periods, namely 1980-1988 and 1989-1995.  Some changes in the tendencies of the different circuits was evidenced in this breakdown.  Concerning the second point, the pattern of outcomes in these cases was unaffected by the statutory basis for the discrimination claim, as well as by the particular basis for the claim.  This supports Mollica’s assumption of fungibility of cases for analytic purposes.  However, in follow-up analyses of cases concerning either discharge or promotion, different patterns arose.  In cases concerning discharge, race and age claims fared better than sex or other types of discrimination claims.  In promotion cases, sex and other discrimination claims fared better, and race and age claims fared worse.  Further collaboration between lawyers and non-lawyers on such issues should promote the interests of employers and em-ployees alike.