64 Wash. & Lee L. Rev. 111 (2007)
Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements

handle is hein.journals/waslee64 and id is 119 raw text is: Outing Outcomes: An Empirical Study
of Confidential Employment
Discrimination Settlements
Minna J. Kotkin*
Recent empirical studies on outcomes in employment discrimination
litigation all reach the same conclusion: Plaintifs have little chance of
success. But these studies rely on summary judgment decisions and trial
verdicts, gleaned from reported opinions, electronic docket entries, and
data collected by the Administrative Office of the Courts, and they
acknowledge that this is just the tip of the iceberg. Until now, settlement
outcomes, which account for 70% of case resolutions, have been rendered
invisible because of confidential settlement agreements. Along with the
vanishing trial syndrome, secret settlements have created an information
vacuum, skewing the public policy discourse about employment
discrimination litigation and leaving the judiciary, litigants, and attorneys
without benchmarks by which to negotiate resolutions.
This Article reports on an anonymously coded dataset of 1,170 cases
settled by federal magistrate judges in Chicago over a six-year period
ending in 2005, and provides the first detailed analysis of settlement
outcomes. These data reveals that employment discrimination claimants,
who account for over 40% of the dataset, obtain a mean recovery of
$54,651. Among the factors analyzed as they relate to settlement amount
are: type of discrimination, type of adverse employment action, stage of
litigation, and amount of lost wages.
*   Professor of Law, Brooklyn Law School. This Article could not have been written
without the cooperation and support of Hon. Morton Denlow, Presiding Magistrate Judge,
Federal District Court for the Northern District of Illinois, who spearheaded the effort to create
the Chicago settlement database and made it available to me, and Jennifer Shack, Director of
Research at the Center for Analysis of Alternative Dispute Resolution Systems, who developed
and maintains the database. Rebecca Widom, Director of Research, Urban Justice Center,
provided invaluable statistical analysis and assistance. I presented this Article at the Conference
on Empirical Legal Studies at the University of Texas Law School, and thank Linda Krieger for
her comments and participants for their feedback. Thanks also to my research assistants, Cheryl
Baxter and Jennifer Williams, Brooklyn Law School, Class of 2007. I gratefully acknowledge
the support of the Brooklyn Law School Summer Research Stipend Program.

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