Basketball.jpgEmployment discrimination claims and making bracket selections for March Madness a/k/a the men’s Division 1 NCAA basketball tournament often share two decision-making approaches: Guessing and analysis.

For example, Survival of the Fittest: A New Model for NCAA Tournament Prediction discusses analyzing the tournament using a model based on network characteristics to “quantify traits that specifically apply to the tournament and the other teams in it, which form a network as they play each other over the course of the season.” Sounds like a lot more work than simply going by who has the better mascot. 

But in contrast, Sheldon H. Jacobson, a professor of computer science at Illinois, notes that picking the higher-seeded team to beat a lower-seeded opponent usually works only in the first three rounds of the tournament, but after you get to the Elite Eight, seeding is irrelevant and “you might as well pick names out of a hat.”

Guessing, Analysis, or a Little of both in Employment Discrimination Lawsuits

In representing individuals and employers in employment discrimination lawsuits, making settlement and litigation decisions often comes down to a mixture of guesswork and analysis. But proper analysis is the beginning point for taking the guess-work out of litigation.

The starting point for this process is reducing the claims to a range of potential outcomes. In this regard, a critical first step in this process is analyzing jury verdict results. Consider for example three randomly selected 2011 employment lawsuits and their results:  

  • Defense Verdict – Plaintiff awarded $0.00: In a gender discrimination and a hostile work environment involving a 40 year old female Plaintiff who was working in retail sued for lost wages, benefits, and damages for emotional distress. She asked the jury for in excess of $100,000. The Defendant employer contended that Plaintiff’s complaints were promptly investigated when she complained to the appropriate supervisor, an immediate investigation was performed and disciplinary actions were taken. Defendants denied that plaintiff was terminated in retaliation for her complaint and contended that she was terminated for economic reasons.
  • Settlement of $130,000: A legally-blind 44 year old female employee claimed she was fired because of her handicap. The defendant employer denied the allegation and maintained that the plaintiff’s firing was for nondiscriminatory reasons. 
  • Plaintiff verdict in the amount of 535,120.00: In a discrimination lawsuit, a white, 32 year old male teacher was terminated for making a racially-insensitive remark. The plaintiff argued that he was singled out for discipline when similar comments made by black employees were overlooked.

For an actual claim, the sample of jury verdicts will be larger and usually limited to identical or similar claims. Depending upon the available sample size, this analysis may also be reduced by Michigan counties or geographic areas. 

In this very limited sampling, the average amount for resolving these claims was $221,706.00 (exclusive of costs and attorney fees). I would also want to put as much context behind the numbers used to reach this value. 

For example, a further investigation of the circumstances of the largest plaintiff’s verdict may (hopefully) explain why that verdict result should not be relevant in analyzing a particular discrimination claim. Perhaps, there was direct evidence of discrimination, spoliation of evidence, or particularly egregious conduct on the part of the defendant employer. From here, a useful “value” of what a claim is worth can be fleshed out.

There is also a significant amount of additional analysis that goes into assessing claims or defenses. One example, I’ve begin to incorporate a decision tree analysis, also known as risk analysis, to further refine my evaluation of a particular claim or defense. I’ve found that decision tree analysis is useful for providing structure within which to assess litigation or settlement strategy, lay out options, and investigate possible outcomes from choosing those options. It also provides a solid foundation for offering reasons for the likely outcome on an issue. 

It is important to remember that even within this structure some “educated guessing” comes into play in terms of exercising experience and judgment. Both are needed to assess issues such as rulings on key evidence issues, anticipating how a jury will respond to various issues, credibility of witnesses, and the likelihood of disposing of a claim through a dispositive motion.   


Preferably a thorough case analysis done as early in the litigation process as possible will avoid the all too familiar disappointing feeling of looking over a decimated March Madness bracket (thanks MSU … and Duke … and Missouri).

But unlike the disappointment of losing your office pool, failing to engage in a meaningful analysis at the beginning of a claim or defense could mean the disappointment of pursuing a costly litigation strategy that is unlikely to overcome significant factual or legal challenges.

With this realization, however, the focus can be shifted to developing a settlement strategy that may more cost-effectively resolve the claim. Only by following an analytical framework along with mixing in an attorney’s own professional judgment about an employment discrimination lawsuit can a clearer understanding about key issues and exposure be obtained. And maybe a little bit of luck.