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Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States

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  • Laura Beth Nielsen
  • Robert L. Nelson
  • Ryon Lancaster

Abstract

This article analyzes the outcomes of employment discrimination lawsuits filed in federal court from 1988 to 2003. It goes beyond previous research by examining case filings rather than published opinions and by treating case outcome as a sequential variable. Our analysis is informed by four theoretical models: formal legal, rational action/economic, legal mobilization, and critical realist. We employ a discrete‐time event‐history model with random effects to estimate whether a case will end at a particular stage. We find that employment discrimination litigation consists overwhelmingly of individual cases, a majority of which end in a small settlement. The outcomes of cases are difficult to predict at the outset of litigation. Legal representation and collective legal mobilization have powerful effects on outcome, but collective legal mobilization is rare. These results are most consistent with the critical realist perspective. Our analysis suggests that employment discrimination litigation maintains law's jurisdiction over claims of workplace discrimination while not providing a significant remedy or an authoritative resolution in most cases.

Suggested Citation

  • Laura Beth Nielsen & Robert L. Nelson & Ryon Lancaster, 2010. "Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 7(2), pages 175-201, June.
    • Handle: RePEc:wly:empleg:v:7:y:2010:i:2:p:175-201
    DOI: 10.1111/j.1740-1461.2010.01175.x
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    1. Ashenfelter, Orley & Eisenberg, Theodore & Schwab, Stewart J, 1995. "Politics and the Judiciary: The Influence of Judicial Background on Case Outcomes," The Journal of Legal Studies, University of Chicago Press, vol. 24(2), pages 257-281, June.
    2. George L. Priest & Benjamin Klein, 1984. "The Selection of Disputes for Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 13(1), pages 1-56, January.
    3. Siegelman, Peter & Donohue, John J, III, 1995. "The Selection of Employment Discrimination Disputes for Litigation: Using Business Cycle Effects to Test the Priest-Klein Hypothesis," The Journal of Legal Studies, University of Chicago Press, vol. 24(2), pages 427-462, June.
    4. Zemans, Frances Kahn, 1983. "Legal Mobilization: The Neglected Role of the Law in the Political System," American Political Science Review, Cambridge University Press, vol. 77(3), pages 690-703, September.
    5. Shavell, Steven, 1996. "Any Frequency of Plaintiff Victory at Trial Is Possible," The Journal of Legal Studies, University of Chicago Press, vol. 25(2), pages 493-501, June.
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    Cited by:

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    3. Keren Weinshall‐Margel, 2011. "Attitudinal and Neo‐Institutional Models of Supreme Court Decision Making: An Empirical and Comparative Perspective from Israel," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 8(3), pages 556-586, September.
    4. Chen, Daniel L. & Yeh, Susan, 2022. "How do rights revolutions occur? Free speech and the first amendment," TSE Working Papers 22-1396, Toulouse School of Economics (TSE).
    5. Rothstein, Sidney A., 2019. "Innovation and precarity: Workplace discourse in twenty-first century capitalism," MPIfG Discussion Paper 19/8, Max Planck Institute for the Study of Societies.
    6. Daniel L. Chen & Susan Yeh, 2023. "How do rights revolutions occur? Free speech and the first amendment," Working Papers hal-03921964, HAL.
    7. Judy FUDGE & Guy MUNDLAK, 2022. "Law and gendered labour market segmentation," International Labour Review, International Labour Organization, vol. 161(4), pages 657-675, December.
    8. Theodore Eisenberg & Thomas Eisenberg & Martin T. Wells & Min Zhang, 2015. "Addressing the Zeros Problem: Regression Models for Outcomes with a Large Proportion of Zeros, with an Application to Trial Outcomes," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 12(1), pages 161-186, March.
    9. Ariel C. Avgar & Alexander J. S. Colvin & Harry C. Katz & Katrina G. Nobles, 2023. "A fragmented and heavily privatized dispute resolution system: The United States," Industrial Relations Journal, Wiley Blackwell, vol. 54(4-5), pages 304-320, July.
    10. Chen, Daniel L. & Sethi, Jasmin, 2016. "Insiders, Outsiders, and Involuntary Unemployment: Sexual Harrassment Exacerbates Gender Inequality," IAST Working Papers 16-44, Institute for Advanced Study in Toulouse (IAST).
    11. Chen, Daniel L. & Yeh, Susan, 2016. "Government Expropriation Increases Economic Growth and Racial Inequality: Evidence from Eminent Domain," TSE Working Papers 16-693, Toulouse School of Economics (TSE).
    12. Mark D. Gough & Alexander J. S. Colvin, 2020. "Decision-Maker and Context Effects in Employment Arbitration," ILR Review, Cornell University, ILR School, vol. 73(2), pages 479-497, March.

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