Why Most Employment Discrimination Cases Never Reach a Jury

Most people picture a discrimination case ending in a courtroom: twelve jurors, closing arguments, a verdict. The court records tell a different story. In the most comprehensive study of federal employment litigation ever published — nearly thirty years of data from the Administrative Office of the U.S. Courts, analyzed by two Cornell law professors — plaintiffs who got their discrimination case in front of a jury won about 37 percent of the time. Plaintiffs whose cases were decided on a pre-trial motion won less than 4 percent of the time.

Read those two numbers together and the real shape of employment litigation comes into focus. Juries are not the problem. The cases are being decided before any juror hears them. This is not a scare piece — it is the opposite. The outcome of a discrimination case is shaped by decisions made early, when the claims are chosen and the forum is set. That early window is where a lawyer earns the fee.

What Summary Judgment Actually Is

Summary judgment is a motion the employer files — usually after discovery closes — asking the judge to end the case without a trial. The employer's argument is that even taking the evidence in the light most favorable to the employee, no reasonable jury could find discrimination, so there is nothing to try.

If the judge agrees, the case is over. No jury, no testimony, no verdict. If the judge denies the motion, the case proceeds to trial — and in practice, a denied summary judgment motion is often the moment a case resolves, because the employer now faces a jury it tried to avoid.

For most employment cases, this motion is the single most consequential event in the litigation. And most people going through a termination or a harassment complaint have never heard of it. They are thinking about the trial. Their employer's lawyers are thinking about the motion.

The Same Case Can Face Two Different Standards

Here is the part that surprises even some lawyers: the standard a judge applies to that motion is not the same everywhere. The identical set of facts can be tested under two materially different rules depending on whether the case sits in federal court or in New York State court.

In federal court

Federal summary judgment practice is governed by a trio of 1986 Supreme Court decisions, the most important of which is Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Under Celotex, an employer moving for summary judgment does not need to come forward with its own evidence disproving discrimination. It can win by pointing out that the employee lacks proof on an essential element of the claim. The burden then falls on the employee to produce admissible evidence — documents, deposition testimony, sworn statements — showing there is a genuine dispute for trial.

In practice, that means a federal discrimination case is won or lost on the paper record the employee's side built during discovery. If the file is thin on any required element, the motion can succeed even if the employer never affirmatively proved anything.

In New York State court

New York runs the motion differently. Under Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986), the party moving for summary judgment must first make a prima facie showing of entitlement to judgment — by tendering its own admissible evidence demonstrating that there is nothing to try. And under Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985), if the moving papers fail to make that showing, the motion must be denied regardless of the sufficiency of the opposing papers.

Sit with that last clause. In New York State court, an employer that files a defective motion loses the motion even if the employee files nothing in response. The initial evidentiary burden rests on the party trying to end the case, not the party trying to save it.

Neither standard guarantees anything, and cases are dismissed — and survive — under both. But they are different tests, applied at the most dangerous moment in the case, and which one applies is a function of decisions made at the very beginning: which claims were pleaded, and where.

Why the New York Human Rights Law Changed in 2019

For roughly three decades, New York courts interpreted the New York State Human Rights Law largely in lockstep with federal Title VII. If federal case law tightened a standard, state claims tightened along with it. That habit ended in 2019.

The 2019 amendments direct that the NYSHRL be construed liberally "regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed." The legislature severed the tether on purpose. The amendments also eliminated the "severe or pervasive" requirement for harassment claims — under the current statute, conduct is actionable if it rises above "petty slights or trivial inconveniences" — and narrowed the affirmative defense employers had used to defeat harassment claims when the employee had not filed an internal complaint.

The damages rules diverge too. Title VII caps compensatory and punitive damages on a sliding scale that tops out at $300,000 for the largest employers (42 U.S.C. §1981a(b)(3)). The NYSHRL has no cap on compensatory damages, and since 2019, no cap on punitive damages either.

The practical upshot: a reflex built over thirty years — treat the state claim as a mirror of the federal claim — no longer describes the law. The state statute now has its own standards, its own construction rule, and its own damages structure, and a case strategy that ignores that is running on an outdated map.

The NYC Human Rights Law Does Not Apply in Nassau or Suffolk County

One correction worth making plainly, because it is the most common error we see in articles written for this market: the New York City Human Rights Law — the famously broad city statute you may have read about — does not cover Long Island workplaces. It protects employees whose work is affected within the five boroughs. A job in Hempstead, Melville, Hauppauge, or Riverhead is outside its reach unless the work regularly crosses into the city.

A Nassau County or Suffolk County employment case is governed by the New York State Human Rights Law and the New York Labor Law, alongside the federal statutes. Before 2019, that was a meaningful downgrade from the city law. After the 2019 amendments, the gap narrowed considerably — the state statute now carries the liberal-construction command, the lowered harassment standard, and uncapped damages that used to distinguish the city law.

If an article or a consultation leads with NYCHRL protections for a Long Island job, that is a sign the analysis was written for a different market.

Why the Choice of Courthouse Is Often Made for You

Employees rarely experience the forum question as a choice, because the default path makes it quietly. It usually goes like this.

Something happens at work, and the employee — often after searching online — files a charge with the EEOC. That is a reasonable step; a timely charge is required to preserve federal claims. Months later, the EEOC issues a right-to-sue letter, which starts a 90-day clock to file the federal claims in court. Ninety days is not much time, the letter is about federal claims, and so the complaint gets filed in federal court. The path of least resistance has selected the forum, the summary judgment standard, and the damages caps, all without a single deliberate decision.

The second mechanism is removal. Even a case filed in state court can be transferred by the employer to federal court if the complaint pleads any claim arising under federal law (28 U.S.C. §1441). In plain language: the lawsuit you filed at the courthouse down the street — Nassau County Supreme Court in Mineola, or Suffolk County Supreme Court in Riverhead — can end up in the Eastern District of New York in Central Islip or Brooklyn, because of a single federal cause of action in the complaint. Employers' counsel know this, and removal is routine.

None of this means the federal forum is wrong. It often is not. It means the forum should be the product of analysis rather than inertia — an assessment of which claims the facts actually support, what each statute offers, and which procedural framework fits the evidence. That analysis has to happen at the beginning. After the charge is filed and the complaint is drafted, most of the doors have already closed.

A composite illustration — not any actual case — shows how quietly this plays out. An office manager is fired three weeks after reporting harassment. She files an EEOC charge herself, waits out the investigation, receives a right-to-sue letter, and finds a lawyer with five weeks left on the 90-day clock. The complaint gets drafted fast, pleads the federal claim, and lands in federal court. Two years later the case ends on a summary judgment motion, tested under the Celotex standard, with damages that would have been capped had she prevailed. No one ever decided that. It was the default.

Wage and Overtime Cases Are a Different Answer

To be straight about the other side of this: for unpaid wage and overtime claims, federal court is frequently the better forum. The Fair Labor Standards Act's collective-action mechanism lets similarly situated employees join a single federal case in a way that state procedure does not replicate, and the interaction between FLSA damages and New York Labor Law remedies is often litigated more efficiently in one federal action. Lawyers who file wage cases federally are usually making the right call.

That is the point worth internalizing: different claims produce different answers. Discrimination claims and wage claims run on different statutes, different proof structures, and different procedural machinery. A firm that files every case in the same courthouse — either courthouse — is answering the question before asking it.

What to Do Now

If you believe you have been discriminated against, harassed, or retaliated against at work, three things protect your position while you decide what to do.

Preserve everything. Forward to your personal email the documents you are entitled to have: your reviews, commendations, the communications around the adverse action, complaints you made and any responses. Write down what happened, with dates and witnesses, while it is fresh. Once access is cut off — and it will be, quickly — reconstructing the record gets harder.

Know that deadlines exist and vary. The EEOC charge deadline is 300 days. A right-to-sue letter starts a 90-day clock. NYSHRL court claims carry a three-year statute of limitations; wage claims reach back six years; other statutes have their own periods. Which deadlines apply depends on which claims your facts support, and some of them are shorter than people assume.

Talk to a lawyer before you file anything with any agency. This is the one that surprises people. An agency charge feels like a safe first step, but it sets procedural machinery in motion — the right-to-sue clock, the election-of-remedies doctrine, the pull toward a particular forum — that is hard to unwind. The forum analysis, the claim selection, and the filing sequence should be decided together, once, at the start. A free consultation costs nothing and closes no doors: call (516) 750-0595 or request a free case review online.