Protecting the Compromised Worker: A Challenge for Employment Discrimination Law

Employment discrimination plaintiffs achieve extraordinarily low win rates in federal district courts, among the lowest of any litigation category. Explanations abound: intentional discrimination is difficult to prove without smoking-gun evidence, judges harbor skepticism of discrimination claims, and plaintiffs' lawyers often perform poorly. Siegelman identifies a structural feature overlooked in this scholarship: a substantial fraction of employment discrimination cases involve "compromised" workers—employees whose own documented failings plausibly explain the adverse treatment they allege. When discrimination is common and plaintiffs rarely win, the legal system performs poorly from both punishment and compensation perspectives. The core tension arises because employment discrimination law assumes discrimination can be isolated and distinguished from employer conduct based on legitimate reasons. But compromised plaintiffs present cases where both discrimination and performance deficiencies could explain adverse employment decisions. Siegelman defines compromised workers using an original empirical dataset of Title VII cases, demonstrating their quantitative prevalence. The article examines structural features of employment discrimination law explaining this phenomenon, including evidentiary burdens, causation doctrine, and comparative impact standards. Siegelman argues that heightened judicial scrutiny of employment practices could improve the system's performance, though such scrutiny entails significant costs and risks making perfectly justified determinations between discriminatory and legitimate motives.

Topics: Labor & Employment · Civil Rights · Evidence & Procedure

Keywords: employment discrimination · Title VII · compromised plaintiff · intentional discrimination · burden of proof · win rates · Crawford v. Indiana Harbor Belt Railroad