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In the January issue of The Third Branch, Chief Justice Rehnquist gave his annual report on the state of the federal judiciary. While criminal case filings were up for the sixth straight year, total civil filings during 2000 were down by three-tenths of one percent. For the second year in a row, private cases involving both federal question and diversity of citizenship fell. New civil cases in which the federal government was either the plaintiff or defendant, however, rose ten percent (5666 cases) during the year. Nevertheless, the drop in private cases was enough to result in a net drop of 754 total civil filings for the year.
Personal Injury Cases Plummet
Leading the decline at the federal level this year was a 40 percent decline in personal injury cases, primarily related to asbestos and breast implant litigation. State courts, however, have also seen a decline in the number of tort cases filed over the past decade, also led by personal injury statistics.
The National Center for State Courts reports that drops have occurred generally throughout the country with some states recording huge declines. In California, for example, general civil cases slipped from 225,000 to 175,000 cases filed per year during the 1990s despite an 11.2 percent increase in population during that same time period.
There have been a number of arguments as to what is the true cause of this drop, but many factors have each contributed to some degree. Safer cars and drunk driving campaigns have cut the number of fatal automobile accidents. The Consumer Product Safety Commission conducted more than 300 product corrective actions, affecting some 75 million consumer product units, in 1999 alone, and credits itself with contributing to the 30 percent drop in the number of product-related deaths and injuries since the agency started in 1972. OSHA, meanwhile, holds itself responsible for achieving a 40 percent decline in the number of workplace injuries and illnesses, since the agency was formed in 1971, despite a doubling in the size of the workforce. Insurance companies tout the safety programs they have helped their customers implement, and the plaintiffs’ bar credits itself with providing the financial incentive for companies to build safer products. The rise of mediation and arbitration services have also contributed their part.
Rise in Employment Cases
While actions based on physical injury are on the decline, employment cases have continued to rise. While workers’ compensation laws have covered workplace accidents for the better part of a century, litigation regarding other factors of employment is escalating in all levels of courts.
At the federal level, Title I of the Americans With Disabilities Act (1990), the Age Discrimination in Employment Act, the Civil Rights Act of 1991, the Equal Pay Act (1963), the Family and Medical Leave Act, the Employee Retirement Income Security Act and Title VII of the Civil Rights Act of 1994 all provide ample opportunities for litigation. (See EEOC statistics on page 4.) Recent agency actions such as the November release of the OSHA Ergonomics Regulations and the December release of revisions to the Federal Acquisition Regulations have already drawn preemptive lawsuits from the U.S. Chamber of Commerce and other organizations. While it remains to be seen what will happen with these regulations under the Bush Administration, if they do stand they are sure to engender further litigation.
The courts, meanwhile, are busy handling employment cases at both the trial and the appellate level. In Atlanta, the Coke class action lawsuits are proceeding; in San Francisco, the Wonder Bread case resulted in a $132 million dollar jury verdict last summer; and, in Seattle, the Microsoft “permatemp” stock options lawsuit is scheduled for a final settlement hearing in late February.
The U.S. Supreme Court also has its share of these cases this session. In December it refused to review the Eighth Circuit decision in Taylor v. US (00-182) regarding including a debtor’s pension benefits in the calculation of disposable income in bankruptcy, and the next month rejected an appeal of the Third Circuit’s ruling in CBS v. Bellas that accrued shutdown benefits are entitled to the same ERISA benefits as retirement plans. It has, however, taken on a number of other employment-related cases this session. In PGA Tour v. Martin (00-24) the court is considering whether Title III of the ADA applies to professional golfers in a PGA tournament. In Pollard v. Dupont (00-763) the court is reviewing issues of front pay and statutory damages caps in a sexual harassment case. In Circuit City Stores, Inc. v Adams (99-1379) it takes up the Ninth Circuit’s decision that the Federal Arbitration Act does not apply to employment contracts. Whether state employees can sue a state under the ADA, FMLA or the Rehabilitation Act of 1973 is being heard in the matter of University of Alabama Board of Trustees v. Garrett (99-1240). And, in three cases regarding ERISA, the court will decide whether an insurance company can pursue a subrogation and reimbursement claim against an employee who recovers from a third party (Great West Life v. Knudsen 99-1786), whether a state can require that managed care organizations submit to outside doctor review when they refuse to pay for medical procedures (Montemayor v. Corporate Health Insurance 00-665) and whether a Washington state law regarding designation of a beneficiary preempts federal law on the matter.
Things have also been busy at state and local levels this past year. In California, for example, the legislature amended the Fair Employment and Housing Act, stating that “California law in the area of disabilities provides protections independent from the ADA and that the ADA provides a floor of protection … but not a ceiling.” The new law also specifically rejects the federal standard by requiring that whether a disability limits a life activity be assessed without reference to mitigating medications, assistive devices or accommodations. Meanwhile, that state’s Supreme Court gave employers a major victory in Guz v. Bechtel by making it more difficult for employees to assert implied guarantees of job security.
With all three branches of government actively providing their own changes to the employer/employee relationship, we can expect employment law to continue to be a heavily litigated field for decades to come.