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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.