Speculation About Judicial

Outcomes Under 2008

Amendments

Ruth ColkerDistinguished University ProfessorThe Ohio State University

Why File ADA Employment Cases?

And why file pro se?

EEOC Charge Data for Fiscal Year 2008

All Resolutions 16705 100 % (admin closures, no reasonable cause, merit resolutions)

Settlements 2079 12.45 % (benefit)

Withdrawals with benefits 1058 6.33 % (benefit)

Administrative closures 2889 17.29 % (no benefit)

No reasonable cause 9760 58.43 % (no benefit from EEOC process)

Successful reasonable cause resolution

362 2.17 % (benefit)

Unsuccessful reasonable cause resolution

557 3.33 % (no benefit from EEOC process)

Some benefit 3499 20.95 % (settlements, withdrawal with benefits, successful reasonable cause conciliation

Pro-Plaintiff Frequencies

Frequency Percent

No 72 36.0

Yes or Likely Yes 128 64.0

Total 200 100.0

Definitely Settled

Frequency Percent

No or don’t know 130 65.0

Yes 70 35.0

Total 200 100.0

Is Disability Status an Issue?

Frequency Percent

No or don’t know 181 90.5

Yes 19 9.5

Total 200 100.0

Are Reasonable Accommodation Requests an

Issue?

Frequency Percent

No or don’t know 127 63.5

Yes 73 36.5

Total 200 100.0

Reasonable Accommodation Issue by Definitely Settled

Reasonable Accommodation Issue

No or don’t know if definitely settled

Percent Yes definitely settled

Percent

No or don’t know (reasonable accommodation issue)

84 66.1 % 43 33.9 %

Yes (reasonable accommodation issue)

46 63.0 % 27 37.0 %

Total 130 65.0 % 70 35.0 %

Difference is not statistically significant under Chi-square test

Litigation Difficulties Frequencies

Frequency Percent

No or don’t know 148 74.0

Yes 52 26.0

Total 200 100.0

Pro Se Status by Litigation Difficulties

Litigation difficulties: no or don’t know

Litigation Difficulties: yes

Pro Se: no 139 (87.4 %) 20 (12.6 %)

Pro Se: yes 9 (22.0 %) 32 (78.0 %)

Total 148 (73.5 %) 52 (26.5 %)

Difference is significant at .001 level under 2-sided Pearson Chi-Square test

Pro Se by IFP filed

IFP Motion Filed: No

IFP Motion Filed: Yes

Pro Se: no 157 (98.7 %)

2 (1.3 %)

Pro Se: yes 22 (53.7 %) 19 (46.3 %)

Total 179 (89.5 %)

21 (10.5 % )

Difference is significant at .001 level under 2-sided Pearson Chi-Square test

Pro Se by Paid Filing Fee

Paid filing fee: no

Paid filing fee: yes

Pro Se: no 2 (1.3 %) 157 (98.7 %)

Pro Se: yes

17 (41.5 %)

24 (58.5 %)

Total 19 (9.5 %) 181 (90.5 %)

Difference is significant at .001 level under 2-sided Pearson Chi-Square test

Pro Se by Definitely Settled

Definitely Settled: No or don’t know

Definitely Settled: Yes

Pro Se: no 91 (57.2 %) 68 (43.6 %)

Pro Se: yes 39 (95.1 %) 2 (4.9 %)

Total 130 (65.0 %) 70 (35.0 %)

Difference is significant at .001 level under 2-sided Pearson Chi-Square test

Pro-Plaintiff by Defendant Filed Dispositive Motion

Pro-defendant Motion: no

Pro-defendant Motion: yes

Pro-plaintiff: no 18(25.0 %) 54 (75.0 %)

Pro-plaintiff: yes or likely yes

119 (93.0 %) 9 (7.0 %)

Total 137 (68.5 %) 63 (31.5 %)

Difference is significant at .001 level under 2-sided Pearson Chi-Square test

Pro-Plaintiff by Result of Defendant Motion

Pro-defendant motion granted: no*

Pro-defendant motion granted: yes

Pro-plaintiff: no 20 (27.8 %) 52 (72.2 %)

Pro-plaintiff: yes or likely yes

128 (100.0 %) 0 (0.0 %)

Total 148 (74.0 %) 52 (26.0 %)

*includes situations where court does not rule on defendant’s motion

Difference is significant at .001 level under 2-sided Pearson Chi-Square test

Conclusions

Disability status was not a big factor in judicial outcomes on eve of adoption of 2008 Amendments.

Most frequently litigated issue involved reasonable accommodations.

EEOC had no better success rate at settlement than private bar.

Pro se plaintiffs have virtually no chance of winning yet frequently pay $350 filing fee.

Less than half pro se plaintiffs file for IFP status.

More litigation support needed for disability plaintiffs including many who hired a lawyer.