Myths In Employment Civil Rights Litigation: Frivolity

Myth 8. Many plaintiffs’ lawsuits are frivolous.

Our interviews with defendants and their lawyers reveal that they often believe plaintiffs are ill-informed about the law or seeking undeserved compensation. Yet there is no straightforward test to determine at the outset of a case whether it is weak on the merits. Unlike medical treatment files, which can be objectively reviewed by experts, employment files are themselves created by employer-defendants and may contain subjective assessment of performance and misconduct.

One indication of this difficulty can be seen in our data. The EEOC created priority codes to predict the odds of success when charges are filed. We obtained commission records and matched them to a large subset of our filings cases. The EEOC priority codes had no power to predict the outcomes of our cases.

from the ABA: