The right to a jury trial is the armor that protects us from the government, corporations and each other by defining the standards of conduct acceptable in our society. When we were deprived of the right to trial by jury before, the founding fathers of this country sought independence and waged war.
Fifty years ago, this country demanded equality among races and genders. Again, lives were sacrificed in the fight. Congress, following the peoples' will, passed the Civil Rights Act of 1964 to outlaw workplace discrimination and in 1991, added the right to a jury trial. But in the last 50 years, courts have stripped people of those civil rights. Despite the erosion of the jury trial, no one today stands up for the 7th Amendment right to a jury trial.
The mission of our law firm's non-profit arm, Justice at Work, is to preserve this fundamental right. As we saw good cases being dismissed in the federal court that serves Atlanta and the north Georgia region, we decided to study it. The results were startling: 81 percent of discrimination cases were dismissed in full, and 94 percent of the cases had some claims dismissed. Sexual and racial harassment cases were worse: 100 percent of racial harassment and all but one sexual harassment cases were dismissed. [Click this link for a complete copy of this study.]
The problem is not isolated to Georgia. Other studies have shown that nationwide, employment discrimination cases are dismissed at higher rates. According to retired federal judge and Harvard Law Professor Nancy Gertner, new judges are trained on “how to get rid of civil rights cases.” Many judges start with the presumption that most of the cases are baseless. Shouldn't the common goal of the judiciary, Congress, and of lawyers be improving people's access to justice?
Some argue that strong cases settle, but this fails to address that these cases settle in the shadow of the dismissal rates, for far less than the harm caused. Critics of the study posit that that the reason for the high dismissal rate is poor quality cases brought by disgruntled employees. Some blamed the bad law created by the federal appeals court that oversees Georgia.
To test these theories, Justice at Work studied the Northern District of Alabama, a federal court governed by the same law. Although still too high, only 66 percent of the discrimination cases were fully dismissed by judges. Like Georgia, Alabama has no state laws protecting private employees and is in the same circuit. What explains this difference?
Empirical research reveals that presenting facts, like the results of this study, can eradicate implicit bias. By publishing this information, we hope to begin a dialogue on an issue that impacts every employee in the workplace. Nationally, employees are denied the right to have a jury of their peers determine acceptable conduct in the workplace. Judges, who are appointed for life and are not employees' peers, are deciding that multiple uses of the “N” word and groping by supervisors is conduct that employees must endure – as a matter of law. Is this the will of the people?
Congress and our Constitution dictated that a jury of our peers should determine acceptable conduct in the workplace. We must return to juries, not judges, making these decisions. In Georgia, the bench and bar should endeavor to determine the basis for the higher dismissal rates. Is it the additional hurdles in place with a two-judge system? Is it the practice of following district court opinions as binding precedent, creating law that is against the intent of Congress?
Georgia's legislature must also pass laws that protect employees, as federal protections no longer exist. But, more importantly, on a national level, Congress must restore the Civil Rights Act, allowing jurors to again make decisions about what is acceptable in society.
The right to a public trial with an impartial jury is what distinguishes this country from other countries not known for their freedom. To preserve our freedom, we must elevate the fight for this fundamental right.