New York Employment Discrimination Lawsuits By The Numbers
July 11, 2018
A database on discrimination jury verdicts in New York reveals some surprising results
New York workers benefit from federal, state, and city laws that ban wage theft, discrimination, and sexual harassment in the workplace. These laws stop companies from denying minimum wage or overtime pay, and help workers facing wrongful termination or retaliation. However, how many employment discrimination lawsuits end in jury verdict for the worker? A recent study which created a seven year database of New York employment law cases provides surprising answers.
In April 2017, Vivian Berger, a preeminent employment dispute mediator and professor emeritus of Columbia University School of Law, published “Winners and Losers: Employment Discrimination Trials in the Southern and Eastern Districts of New York: 2016 Update.” Her study surveyed employment discrimination verdicts in the United States Courts for the Southern District of New York and the Eastern District of New York. Aimed largely at mediating employment cases, Berger’s piece provides invaluable data on the outcome of these cases.
This article presents a summary of Berger’s conclusions, followed by an analysis of her study.
How Often Do Plaintiffs Win?
Berger’s study focuses on jury verdicts. Out of 160 cases over a seven year period, plaintiffs won 48 verdicts, while defendants won 108 verdicts. The remaining four cases included mixed verdicts, that is, verdicts partially for the plaintiff and partially for the defendant.
Professor Berger notes that certain factors could skew this data, such as multiple plaintiffs in one case (in which they tend to reinforce each other’s claims), plaintiffs representing themselves with no attorney (they tend to lose), post-verdict adjustments by judges (who can throw out part or all of a verdict), and collections from sometimes insolvent defendants.
Nevertheless, after controlling for these variables, Berger’s conclusions remain unchanged: plaintiffs win employment cases that go to trial about a third of the time. Berger’s data is solid; she presents a large sample and her results roughly parallel the conclusions of her 2012 study covering cases from prior years.
Notably, nearly half of the winning plaintiffs’ verdicts came in retaliation cases. The next two largest categories, claims based on sex and claims based on race and national origin, each made up only half as many wins as retaliation cases. This confirms what Professor Berger refers to as the “common wisdom” that retaliation cases are easier to win than the underlying discrimination claims.
How Much Do Plaintiffs Win?
Professor Berger’s study provides detailed data on the financial outcome of employment discrimination cases. By analyzing jury verdicts, reductions by judges, and median versus mean amounts, the study shows how much plaintiffs receive for pain and suffering and punitive damages.
Pain and suffering
The average award for pain and suffering was approximately $200,000, with plaintiffs faring slightly better in the Southern than in the Eastern District. However, these jury verdicts were subsequently reduced by judges by an average of about $50,000, yielding a final average award for pain and suffering closer to $150,000.
Professor Berger cautions us that the figures are distorted by two outliers: a $4 million verdict for pain and suffering in the Southern District and a $2 million verdict for pain and suffering in the Eastern District. Without these outliers, the averages are considerably lower, a little over $100,000 in the Southern District and about $55,000 in the Eastern District. She posits that because of the outliers, the median is more informative than the average; the median amount in both districts gives us a range of $30,000-$60,000.
Professor Berger determined that with punitive damages, the jurors were only given the opportunity to award punitive damages in 22 of the 160 cases. In those 22 cases, the average award was approximately $460,000. Post-verdict reductions by judges brought the average down to about $250,000. Using the median instead of the average to reduce the effect of outliers puts the typical punitive award at $125,000. The numbers get smaller still after considering post-verdict adjustments by judges; the median post-verdict punitive award is about $45,000.
How Long Does a Case Take?
The data in Professor Berger’s study is less nuanced and more consistent on this question. The average time from commencement of an action to verdict was 32 months; additional time should be added for post-trial motions, appeals and execution of judgement.
An Employment Lawyer’s Perspective
As a plaintiff’s employment lawyer with over two decades of experience litigating employment discrimination cases, I found Berger’s study thorough and enlightening. She confirms much of the “common wisdom” among employment lawyers with detailed, data-driven analysis. However, her study also points towards areas for additional research.
One important piece of data not included in Professor Berger’s study is lost wages, often the largest single item of damages. It makes sense not to include them because they are quantifiable; both side’s attorney’s know what they are and if a jury finds for a plaintiff, they simply do the math to calculate the award.
Lost wages are awarded when a plaintiff was fired (or constructively fired because the situation was, literally, intolerable) and does not immediately find an equivalent job. Lost wages equal a multiplier of the plaintiff’s salary. Whether a plaintiff was earning $50,000 or $350,000, her lost wages will be calculated accordingly. For instance, a man making $30,000 per year who was fired in retaliation after complaining about sexual harassment will, in addition to emotional distress and possibly punitive damages, be awarded a sum to compensate for the time out of work at the rate of $100,000 per year, plus benefits. These are called ‘hard’ damages.
There are, however, some areas of discretion for the jury, for instance, determining whether a plaintiff made reasonable efforts to mitigate her losses by finding a new job. In those cases, not at all uncommon, in which the plaintiff has not found an equivalent job by the time of trial, the jury must determine how long it likely will take the plaintiff to do so. Thus, lost wages awards, while far more predictable than emotional distress and punitive awards, have elements of unpredictability.
The amount of lost wages also influences punitive damages. Punitive damages must legally bear a relationship to ‘hard damages’ and emotional distress. Thus, the greater the plaintiff’s salary, the greater the recovery for lost wages. In those cases where the jury receives instructions to consider punitive damages, plaintiffs who earn more also receive higher damages.
The intended audience for the study, employment attorneys in mediation, are well aware of these variables. People considering a employment discrimination lawsuit and non-employment attorneys need to bear in mind that the damages studied here are only part of the picture. But non-attorneys reading the article should be reminded that the damages studied here are only part of the picture.
attorneys in mediation to include lost back and front wages in a further study based on Professor Berger’s work.
The Facts of the Case
Any study such as Professor Berger’s, which presents a statistical analysis of trial outcomes, necessarily glosses over the differences in the facts of the case. However, those facts affect lost wages, punitive damages, and emotional distress.
Not all cases are equal when it comes to punitive damages. Under New York law, punitive damages can be awarded “where the wrongdoer’s actions amount to willful or wanton negligence” or “recklessness,” or involve “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.” This standard was set by New York’s highest court in 2017. It sets a lower bar than the federal standard, meaning it is better for plaintiffs. Egregious conduct by a senior actor can lead to large punitive awards; this is not a random variable. The same is true of emotional distress – a course of treatment by a doctor, a diagnosis of severe anxiety or depression, relationship problems, and even PTSD can give rise to very large emotional distress awards that can be sustained after verdict.
The facts of the case thus play a large role in the jury verdict. While attorneys can often predict emotional distress and punitive damages based on what courts have been willing to uphold for similar circumstances, these may still cover a broad range. And in any given case, just as in medicine, averages and medians bring less predictive value than the facts of the case, the credibility of the plaintiff and whether the jury finds them sympathetic, and the skills of the attorneys.
Out of court settlements
Professor Berger correctly points out that jury verdicts are not necessarily representative of typical plaintiffs awards because cases that could easily go for either plaintiff or defendant are much more likely to end in trial than are very strong or very weak cases.
In fact, less than 4% of cases that are filed in court go all the way to verdict. Moreover, the study also does and cannot include pre-suit settlements, resolved by negotiation without the filing of a complaint. What is the median recovery in pre-trial and pre-suit settlements? We simply don’t know. Such settlements are virtually always confidential. Median pre-verdict settlements may be far higher – or lower – than the data set forth in this study.
However, we can be certain that they vary greatly depending on the plaintiff’s attorney. In addition to litigation and trial skills, the best attorneys can afford to be highly selective in the cases they accept, and will generally only take cases involving serious misconduct, egregious injury, a solvent defendant, and evidence that gives the attorney confidence in victory. Because the cases are strong, and the reputation of the defendant is at stake, these cases often resolve without a suit for well more than the amount plaintiff would likely win at trial. More research and discussion would be valuable here, but data remains difficult to obtain.
Professor Berger’s study provides a wealth of valuable information for employment lawyers in the New York area. By providing concrete data on the outcomes of employment discrimination lawsuits, including the jury verdicts for pain and suffering and punitive damages, the study helps employment lawyers evaluate the benefits of going to trial versus pushing for a settlement.
However, further research could illuminate the nuances in employment discrimination lawsuits. For example, while Berger is correct in deeming the median more relevant than the mean, the mean is not irrelevant – at least for defense attorneys. A large corporation or insurance company can withstand a $4 million judgement; for many other defendants, such a judgement would be fatal. As Professor Berger has shown, outliers happen. For defendants who cannot risk a high verdict against them, neither the median nor mean are as relevant as the worst case scenario.
Charles Joseph has over two decades of experience in employment law. He is the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $120 million for clients.