Being Led by Losers: How to Combat the Disproportionate Number of Reported Decisions Denying Summary Judgment for Plaintiffs in Employment Discrimination Cases

Being Led by Losers: How to Combat the Disproportionate Number of Reported Decisions Denying Summary Judgment for Plaintiffs in Employment Discrimination Cases (April 1, 2013)

 Peter Phillips*

            Employment discrimination claims are “disproportionately susceptible” to dismissal on summary judgment1 and such motions have been on the rise.2  Professor Nancy Gertner proposes that summary judgment decisions are being influenced by the “loser’s rule,” causing the number of employment law cases decided in the summary judgment phase to reach ever higher levels.3 The “loser’s rule” applies when an area of law develops based only on “losing” cases: a disproportionately higher number of plaintiff-loser cases are addressed in reported judicial opinions than plaintiff-winner cases and therefore the only case law for judges to follow in deciding summary judgment motions are the “losers.”4  This essay discusses the need to eliminate the loser’s rule in order to preserve the integrity of the judicial system by enabling justice for employment law plaintiffs and encouraging a robust system of case law for employment law claims by requiring lengthy decisions in both grants and denials of summary judgment motions for employment claims.

           The loser’s rule functions by advancing an area of law through the written dispositions of the “loser” cases. In particular, when a defendant employer presents a motion for summary judgment  to a judge, the judge has two options: (1) grant the motion or (2) dismiss the motion. If the judge dismisses the summary judgment motion, some opinions may be only a paragraph or two long and simply state there are genuine issues of material fact.5 Accordingly, these opinions are brief and without a developed discussion and consequently are rarely even published, not to mention cited. Alternatively, if a judge grants the defendant-employer’s motion for summary judgment, the judge often writes a lengthy opinion as to why there is not a genuine issue of material fact that must be determined by a jury.6 Yet for every summary judgment “win” for employer-defendants, which thereby gives the plaintiff employee a “loss,” there is yet another opinion describing why a plaintiff’s claim should be dismissed, as a result creating a rich case law history of “losers” for plaintiffs.7
This loser’s rule scenario is a self-perpetuating theory.  The case law becomes saturated with lengthy opinions explaining the reasons for denying plaintiffs’ summary judgment motions8; creates an impression that employees’ employment law claims are illegitimate and likely should be dismissed; and perpetuates the stigma that employment law cases are brought by undeserving plaintiffs rather than by unfortunate victims.9 These opinions are the most read by practitioners and available for citation by circuits.10
Our court system is purposefully designed to hear both sides of a dispute and to provide a fair and equitable decision for the parties and for future courts to follow.11 Yet this quantity of loser’s rule decisions will perpetuate a legal history favoring one side: the defendant-employers.  With the loser’s rule in place, the judicial system is inherently inequitable.

           This essay suggests that one way to lessen the influence of the loser’s rule and balance justice is to require judges to write comparably substantive opinions when denying defendant-employers’ motions for summary judgment motion. With this requirement, the flood of loser’s rule opinions will end and summary judgment rulings will inform legal advocates on both sides of a dispute regarding how the case law is developing and the reasoning behind the courts’ decisions.

           Although this could place an added burden on the courts and on judges, this burden is necessary in the interest of justice to dispel the stigma that the “loser’s rule” has created for plaintiffs bringing employment discrimination claims. Demonstrating that the plaintiff’s claim merited a discussion, even when it should be dismissed summarily as a matter of law, can eliminate this stigma. 


*Peter Phillips is 2013 J.D. candidate at New York Law School.

1National Litigation Strategy Project, The Employee Rights Advocacy Institute for Law and Policy, (last visited Mar. 25, 2013).

2See Nancy Gertner, Loser’s Rules, The Yale Law Journal (Oct. 16, 2012), (“Employment discrimination cases . . . are typically resolved on summary judgment . . . .”).

3On April 23, 2012, the New York Law School Law Review and The Employee Rights Advocacy Institute for Law & Policy held a symposium analyzing the use of summary judgment in the field of employment law. The first panel included the Honorable Lee Rosenthal, the Honorable Mark Bennett, the Honorable Nancy Gertner, and the Honorable Bernice Donald. The panel discussed each speaker’s point of view regarding the role of summary judgment including suggestions on how the courts should handle summary judgment moving forward, including Nancy Gertner’s thoughts on the Loser’s Rule. See Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination, N.Y.L. Sch. L. Rev. (Apr. 23, 2012),

4See Rebecca Hamburg, Institute Symposium: Judges Disagree About Whether Summary Judgment Deserves A Funeral, Nat’l Emp. Law. Ass’n (May 3, 2012, 12:13 PM),

5See Chalfin v. Tandem Computers, Inc., 89 CIV. 6386 (RPP), 1990 WL 250812 (S.D.N.Y. Dec. 27, 1990).  In Chaflin, the three count opinion is a total of seven paragraphs. Two of those paragraphs are two sentences long.  See also Bonani v. Astrue, CIV.A. 10-329, 2011 WL 9816 (W.D. Pa. Jan. 3, 2011). In Bonani, the opinion does not recite any substantive facts regarding the case, but rather gives a procedural posture of the case, adopts the Report and Recommendation of the Magistrate Judge, and denies summary judgment.

6See generally In re Zyprexa Products Liab. Litig., 04-MD-1596, 2011 WL 2516333 (E.D.N.Y. June 23, 2011).

7Elizabeth M. Schneider & Nancy Gertner, “Only Procedural”: Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases, 57 N.Y.L. Sch. L. Rev. (forthcoming 2013).

8See David Greenwald & Frederick A. O. Schwarz, Jr., The Censorial Judiciary, 35 U.C. Davis L. Rev. 1133, 1158 (2002).

9Michael Selmi, Why Are Employment Discrimination Cases So Hard to Win?, 61 La. L. Rev. 555, 556 (2001) (analyzing why employment discrimination claims are so hard to win and claiming that some courts have a bias against plaintiffs and feel that the claims are “generally unmeritorious, brought by whining plaintiffs who have been given too many, not too few, breaks along the way”).

10Greenwald & Schwarz, supra note 8, at 1139­–41 (finding that circuits have different rules as to the allowance of citing unpublished opinions in motions, therefore, if a motion is not published, many circuits do not allow the unpublished case to be cited).

11The Judicial Branch, The White House, (last visited Mar. 27, 2013).  See also Fed. R. Civ. P. 1 (“The[ rules] should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding”).

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