Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements

Recent empirical studies on outconzes in enzployment discrimination litigation all reach the same conclusion: Plaintiffs have little chance of success. But these studies rely or? summary judgment decisions and trial verdicts, gleanedfiom 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 dataset of 1,170 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 reveals that employment discrimination claimanfs, who account for over 40% of the dataset, obtain a mean recovery of $54,651. Among the factors analyzed as they relate to settlement amount are: type of discrimination, type of adverse employment action, stage of litigation, and amount of lost wages. * Professor of Law, Brooklyn Law School. This Article could not have been written without the cooperation and support of Hon. Morton Denlow, Presiding Magistrate Judge, Federal District Court for the Northern District of Illinois, who spearheaded the effort to create the Chicago settlement database and made it available to me, and Jennifer Shack, Director of Research at the Center for Analysis of Alternative Dispute Resolution Systems, who developed and maintains the database. Rebecca Widom, Director of Research, Urban Justice Center; provided invaluable statistical analysis and assistance. I presented this Article at the Conference on Empirical Legal Studies at the University of Texas Law School, and thank LindaKrieger for her coniments and participants for their feedback. Thanks also to my research assistants: Cheryl Baxter and Jennifer Williams, Brooklyn Law School, Class of 2007. I gratefully acknowledge the support of the Brooklyn Law School Summer Research Stipend Program. 112 64 WASH. 8 LEE L. REV. 111 (2007) These data indicates that employment discrimination litigation is neither jeopardizing American business nor resulting in undeserved ~lindfalls for disgruntled employees. Plaintiffs are achieving a reasonable degree of success through settlements, measured against their lost wages. The Chicago project should be replicated and refined to provide an even more complete picture of settlement outcomes.