HOW WE GOT THE STORY
In response to a study of employment discrimination cases by Atlanta lawyer Amanda Farahany, reporters Shannon McCaffrey and Bill Rankin read more than 100 decisions handed down by north Georgia judges in 2011 and 2012. They reviewed 11th U.S. Circuit Court of Appeals and the U.S. Supreme Court rulings that set precedents for the Georgia judges to follow. They also reviewed national studies and interviewed lawyers, judges and some of the plaintiffs.
Morgan Cramer said her co-worker at the Bojangles restaurant in Dawsonville repeatedly made vile and graphic comments about how he wanted to have sex with her.
Cramer, then a 17-year-old cashier, reported it to her boss, who insisted the man was harmless. Days later, the same co-worker confronted Cramer in the back of the restaurant, this time moving toward her with his back arched and his hips thrust forward. When she tried to push him away, Cramer says, the man pinned her against the wall, tried to kiss her and then reached for her crotch.
She again told the manager who remained unmoved, according to court records. So, Cramer decided to make sure she wouldn’t be harmed again: She quit.
Later, she filed a lawsuit against the restaurant in federal court. But she found that complaining to the court was sort of like complaining to her boss — her case was dismissed before reaching a jury.
That’s how it generally goes in the northern district of Georgia. In the federal courts covering Atlanta and the northern reaches of the state, it’s nearly impossible to get a trial in an employment discrimination case.
Court records reviewed by The Atlanta Journal-Constitution show that even in cases where employees allege they were groped, cases are dismissed, with a judge finding that no reasonable jury would conclude that the worker endured a hostile work environment.
The same is true where racial discrimination is at issue. Judges have dismissed cases where workers allege the “n-word” and “boy” were used repeatedly in the workplace. In one case, a club owner is alleged to have used the n-word at least six times over the span of 15 months. Yet a magistrate judge held “none of those incidents rise above the level of ‘ordinary tribulations of the workplace.’”
An outlier
Employment discrimination cases are notoriously difficult to prove. Nationwide, 70 percent of cases brought under Title VII of the Civil Rights Act of 1964 are dismissed before trial, at the summary judgment phase, legal studies show.
But Atlanta is still an outlier: Here, judges toss more than 80 percent of all cases, according to the study by the Atlanta law firm Barrett and Farahany.
“We are eviscerating the right to trial by jury, which is one of our constitutional rights,” said plaintiffs’ lawyer Amanda Farahany, who conducted the study with colleague Tanya McAdams.
Their study examined 181 employment discrimination cases filed in the northern district of Georgia in which plaintiffs were represented by counsel. The cases included claims of sexual harassment as well as discrimination based on race, gender, national origin and whether a woman was pregnant.
Judges dismissed 147 of the cases altogether and threw out parts of others.
Some say that shows the process works — preventing the overworked federal courts from being clogged with frivolous lawsuits. They say many of the cases are without merit, brought by disgruntled employees.
Atlanta lawyer Peggy Brockington said it’s easy to file a discrimination case, but it’s hard to prove what’s necessary to satisfy the essential elements required by law in order to go to trial.
“If every case was tried, it’d be so burdensome on the courts nothing could get done,” said Brockington, who has mostly defended companies facing Title VII claims over the past 25 years.
Outlandish claims
Indeed, some of the cases examined by the AJC appear downright flimsy.
In one, a woman sued alleging both gender and race discrimination because she hadn’t been promoted to one of two newly-created real estate jobs in the city of Atlanta government. She had never applied for either position.
In another, a Georgia state trooper filed a race discrimination lawsuit for being fired after reporting his duty belt and service revolver had been stolen from his apartment. But records showed the captain investigating the theft concluded the trooper had lied to him at least two times during the probe.
The problem, say critics, is that stronger cases are being discarded as well, including types of cases that, in other places, often bring victory for plaintiffs.
Take, for instance,race discrimination cases involving use of the “n-word.” Nancy Gertner, a retired federal judge who teaches at Harvard Law School, said that in such cases, juries typically award damages to plaintiffs.
“But in Atlanta, there are judges who can treat it as if this is no big deal and the cases never get before a jury,” Gertner said.
“It’s a virtual repeal of the law,” she said, referring to Title VII of the Civil Rights Act. “It’s still on the books, but nobody wins.”
The law is designed to protect employees from unfair or discriminatory treatment in the workplace on the basis of race, color, religion, sex or national origin.
Severe or pervasive
To qualify legally as harassment, the behavior must be “severe or pervasive,” a standard that seems to often be a moving target for judges, who are sometimes left weighing precisely how many times one employee may touch another or how frequently a racial slur may be uttered before it crosses the line.
Claude Locke sued Shaw Industries Group after he says a female employee at the company touched his buttocks twice and grabbed his crotch once “with sufficient force to injure.” On another occasion, the same female co-worker rubbed her head in his lap while he operated a forklift, he said.
Even so, the part of his claim alleging sexual harassment was tossed.
“It takes much more than a single ‘crotch grab’ to satisfy the sufficiently severe or pervasive element,” wrote Magistrate Judge Walter E. Johnson.
Locke’s lawyer, Kelly Beard, said she was “pretty surprised” when the gender claim was thrown out.
“They want almost a ‘super-burden’ of proof,” she said.
In a lawsuit filed against an Atlanta strip club, two former managers allege club owner David Whorton used the “n-word” so frequently that he called a meeting in which he defiantly told employees he was too old to change the way he spoke. Anyone who didn’t like it could quit, he said, according to court records.
Johnson again recommended the claim be dismissed, even though he acknowledged the behavior of Whorton and his wife, also a defendant in the case, might be “racist, bigoted and/or offensive to people.” The 1964 Civil Rights Act, Johnson wrote, citing an appeals court precedent, “is not a civility code.”
Bureaucratic hoops
Atlanta plaintiffs lawyer Lee Parks, who has long specialized in discrimination cases, said Title VII lawsuits are treated as “second-hand cases.”
Before they even end up on a court docket, the Equal Employment Opportunity Commission must review the allegations and grant the employee the right to sue. That can take as long as two years.
Then, unlike other cases, they are delegated to magistrate judges, who oversee pretrial evidence-gathering and attempts by defendants to dismiss cases before trial. The magistrate issues a recommendation to the district court judge, who would actually preside over a trial. More often than not, the district judge follows that recommendation.
The dismissal rate indicates that judges assume most cases are without merit – “sort of like starting off a criminal case with a presumption of guilt,” Parks said.
Given such steep odds, Parks said, his firm is taking fewer discrimination cases than in the past. “The added work for plaintiffs’ lawyers is enormous and extremely costly,” he said.
“The courts’ tolerance for discrimination and harassment is really, really high. Too often, they’re making decisions a jury should be making.”
The U.S. District Court headquartered in Atlanta currently has eight active judges, five of whom were appointed by Democratic presidents and three of whom were appointed by Republican presidents. Title VII cases are also heard by the court’s eight senior judges; six of these judges were appointed by Democratic presidents, two by Republicans. The magistrates are appointed by district court judges.
Lasting pain
Morgan Cramer, whose suit against Bojangles was dismissed, is now 21. She said a song on the radio, even a random thought, can trigger revolting memories and spark panic attacks.
Cramer’s lawsuit was assigned to former U.S. Magistrate Susan Cole, who recommended the case be dismissed before trial. In her opinion, Cole said that Cramer only told her manager that the co-worker was making “nasty” comments to her. Nasty, which is defined as indecent and obscene, was not enough to put the company on notice Cramer was being sexually harassed, the judge said.
Cole also noted that Bojangles quickly initiated an investigation when Cramer, three days after she had quit her job, called a hotline to report her ordeal. (The co-worker was suspended and later fired.)
Cole’s recommendation was later adopted by a district judge, whose decision was upheld on appeal.
Cramer still can’t believe her case never went to trial. “I feel like I was robbed and that nobody cared,” she said.
“It was so disgusting,” she said. “I was in such shock that it could happen to me. I kept thinking, ‘What did I do to deserve this?’”
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