Jury Trials 'Vanishing' in Employment Discrimination Cases

Georgia's magistrate referral system for employment discrimination litigation has resulted in far fewer jury trials, say the authors, employment lawyers

, Daily Report


A. Lee Parks Jr. is a senior partner at Parks, Chesin & Walbert.
A. Lee Parks Jr. is a senior partner at Parks, Chesin & Walbert.

The civil jury trial is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." —Thomas Jefferson

The Seventh Amendment contains an unmistakable mandate, derived from our Founding Fathers' vision of freedom, that the "right of a trial by jury shall be preserved."

Congress passed the Civil Rights Act of 1991, taking the fact finding inherent in Title VII and Americans With Disabilities Act actions away from district court judges, particularly regarding claims for emotional injury and punitive damages, placing it in the purview of the American jury. At this point, employers were confronted with the real prospect of articulating their "legitimate non-discriminatory reason" for adverse actions to a jury.

That significant constitutional and statutory right has now been largely swept away in the federal court responsible for the Northern District of Georgia, which includes Atlanta and all of north Georgia. A jury of one's peers has been replaced by a summary judgment "paper process" driven by deposition transcripts and attorney-finessed affidavits.

The once revered starring role played by a district court judge in integrating our society is now relegated to a bit part. In this district, all sex, race, national origin, color, religious and disability discrimination cases are assigned to a United States magistrate.

The magistrates act as gatekeepers to insure that only the more egregious discrimination cases make it to the jury trial calendar of a busy district court judge. On the whole they do the job extremely well, almost too well, as very few discrimination cases survive the summary judgment process.

Even when the material facts are in hot dispute, magistrates functioning as de facto special masters routinely decide fact-based issues under the guise of summary judgment, construing inferences often in favor of the moving party. The steady stream of summary judgment orders coming from the magistrates are often opuses of 50 or more pages, parsing through the evidence, openly commenting on the credibility of witnesses and chiding the plaintiff for the inferences drawn from circumstantial or statistical evidence.

These orders reflect a view of our society as having been largely cured of discrimination instead of a place where sexual harassment and racial discrimination, often subtle in form, are alive and well in many work places.

A key component of the enforcement scheme Congress devised to fight employment discrimination was incentivizing private sector lawyers to act as private "attorneys general" so they would accept these difficult cases on a contingent fee basis in reliance upon being awarded a fully compensatory fee by the court if they prevailed under the fee shifting provision in the legislation.

Many of the skilled lawyers practicing in this district, who once routinely accepted discrimination cases and litigated them through trial to vindicate important civil rights, now turn down the majority of the discrimination cases they review.

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