SYRACUSE — A 2012 study by Syracuse–based law firm Bond, Schoeneck & King, PLLC of employment discrimination across upstate and western New York show that employment litigation is declining, while attorneys’ fees and jury awards for cases are rising.
The law firm first prepared a study of employment litigation in 2001, with an update in 2007. This 2012 study updates those previous analyses with information from 2007 through 2011 from U.S. District Courts for the Western and Northern Districts of New York. Those courts include a 49-county region from Buffalo to Albany and from the lower Hudson Valley to the Canadian border.
According to the Bond study, there were a total of 936 employment discrimination cases filed in the two court districts between Jan. 1, 2007 and Dec. 31, 2011 and 2,436 cases filed during the longer 2001 through 2011 period. That’s down from 2,757 cases filed between 1991 and 2000.
From 2007 through 2011, the upstate region averaged just over 187 employment-related cases per year, down from an average of 276 cases per year from 1991 through 2000.
“It’s a bit surprising,” John Gaal, a member (partner) and labor and employment law attorney at Bond, Schoeneck & King, says of the declining numbers. “You expect in worse economic times, frankly, more litigation, not less, because employees have less options.” The typical trend during a down economy, when it’s harder for an employee to turn around and find another job, is to see steady or even increasing litigation levels, he notes.
However, there are a number of reasons why the number of lawsuits is declining, Gaal says.
First, employers have become much more aware of the issue and are taking appropriate steps to minimize the risk of litigation, he says. “Most employers of any degree of sophistication are much more sensitive to these issues,” he says. These companies have trained human-resources staff who are prepared to handle employee issues properly and with sensitivity.
Another factor is that defendant employers continue to prevail in the majority of such cases that go to trial, Gaal says. The Bond, Schoeneck & King study shows that employers won in 60 percent of the cases tried across upstate New York from 2007 to 2011. Note that of the 936 cases filed during that period, only 21 of the cases actually went to trial, with the rest disposed of without a trial.
Gaal believes that plaintiff attorneys are doing a better job of weeding out cases they are unlikely to win.
The drop in cases could also reflect a growing number of cases where grievances are not aired in court but rather through an administrative hearing process conducted by the New York State Division of Human Rights. This process does not involve the courts and does not require an attorney, making it a cost-effective option for some complainants, Gaal notes. He did not have statistics on how many employment cases go through this process annually, but noted that enough cases may be diverted to this route to affect the number of cases filed in court.
While the number of court cases is declining, the battles can still be expensive, Gaal says. For the 2007 through 2011 period, the average jury award was $294,453 with attorney fees of $114,804 compared with an average jury award of $649,086 and attorney fees of $77,971 from 1991 to 2000. While the jury awards seem to be trending downward, Gaal notes that it’s difficult to compare those figures accurately because juries can, and have, awarded amounts that exceed court-imposed caps and those large awards skew the figures and result in figures much larger than what was actually paid out.
While these figures must all be taken with a grain of salt, employers should be aware of them and know what’s happening in the area of employment litigation, Gaal says.
“It does show that these cases still happen, and they cost a lot of money,” he says. They also take time and divert an employer’s attention from the daily running of their business. “So, it’s a risk-management issue,” Gaal says.
Employers have steps they can take to reduce their risk of being on the wrong end of an employment-discrimination lawsuit. Simple steps such as providing adequate training to anyone who supervises employees in a hiring/firing manner, documenting employee issues such as tardiness, and promoting good communication between supervisors and employees can help ward off legal troubles, Gaal explains.
The Bond study also showed a decline in gender, age, and race-related employment discrimination cases offset by an increase in general employment-discrimination claims including those based on religion, national origin, and retaliation.
The complete Bond study is available online at www.bsk.com/site/rte_uploads/files/2012%20Study%20of%20Employment%20Discrimination%20Litigation.pdf
Bond, Schoeneck & King employs 210 lawyers. In addition to Syracuse, it has offices in Albany, Buffalo, Garden City (Long Island), Ithaca, New York City, Oswego, Rochester, Utica, as well as Florida and Kansas. The firm’s practice areas include employee benefits, labor, business, higher education, intellectual property, litigation, mergers and acquisitions, and tax law.
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