Bargaining in the Shadow of the Lawyers: Negotiated Settlement of Gender Discrimination Claims Arising from Termination of Employment
![handle is hein.journals/haneg2 and id is 171 raw text is: Bargaining in the Shadow of the Lawyers:
Negotiated Settlement of Gender
Discrimination Claims Arising from
Termination of Employment
Rachel H. Yarkont
I. INTRODUCTION
Lawyers for both employees and employers' have recognized
plaintiff-employees and their attorneys' comparatively stronger pref-
erence for negotiated settlement in gender discrimination employ-
ment termination cases.2 This Note explores why plaintiff-employees
and their attorneys have greater incentives to settle than defendant-
t Rachel H. Yarkon is an associate in the Labor and Employment Law Depart-
ment of the law firm of Kaye, Scholer, Fierman, Hays & Handler, LLP in New York
City. This Note was originally written for Professor Robert H. Mnookin to fulfill the
author's Third Year Written Work Requirement at Harvard Law School The author
would like to thank Professor Mnookin, the members of the 1995-96 Negotiation and
Dispute Resolution Interdisciplinary Research Seminar, and Jason Brown for their
helpful suggestions and editing efforts, with special thanks to her father, Barry J.
Yarkon, for always helping with her homework.
1. I obtained much of the anecdotal evidence for this Note though observations
as an intern in both employee-side and employer-side law firms and through inter-
views with employment attorneys. In order to ensure a measure of freedom in the
comments, interviewees were promised anonymity. For the purpose of citation, I re-
fer to the employer-side attorneys interviewed in New York City on January 29, 1996
as Employer Interview 1 and Employer Interview 2. I cite the employee-side inter-
views conducted in Boston on March 11, 1996 as Employee Interview A and Employee
Interview B.
2. See; e.g., Employer Interview 1 ('My sense is that in most of these [gender
discrimination] cases, the other side tends to want to settle more than we do.); Em-
ployee Interview B (They never seem ready to settle when I am.).
For the purpose of this discussion, gender discrimination cases includes non-
union claims of unequal treatment in discharge on the basis of gender. My focus is on
suits over job termination because this is the most common scenario that plaintiffs'
employment attorneys see. One study of federal employment discrimination cases
found that the 'vast majority of all litigation suits challenge discrimination in dis-
charge. John J. Donohue III & Peter Siegelman, The Changing Nature of Employ-
ment Discrimination Litigation, 43 STAN. L. Rav. 983, 984 (1991). Another study
found similar results in California employment-related cases. See Samuel R. Gross &
Kent D. Syverud, Getting to No: A Study of Settlement Negotiations and the Selection
of Cases for Trial, 90 MICH. L. REv. 319, 373 (1991) (analyzing 1985-86 and 1989-90](ViewImageLocal?handle=hein.journals/haneg2&div=10&collection=&method=preview&ext=.png&size=3)
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