A new law will go into effect across California on January 1, 2020. California Senate Bill 188 revises the definition of race articulated in the Fair Employment and Housing Act (1959). This definition will now include hair texture and protective hairstyles—traits historically associated with race.
Senate Bill 188 creates an opportunity to review the ways in which the courts have—or have not—helped to enforce employment discrimination laws throughout California. Let’s begin by looking at the data for Los Angeles County.
The graph below outlines the number of trials for employment related cases in Los Angeles County from 2009 to 2018. It is easy to spot the outlier. The number of trials in employment discrimination cases increased by a whopping 100 percent from 2009 to 2016.
Let’s take a closer look at this increase. By disaggregating employment discrimination cases into different categories, we can see that disability discrimination cases and racial discrimination cases accounted for the majority of this growth.
But how have these trials concluded?
After reviewing the outcomes in employment discrimination cases tried to verdict, a somewhat surprising trend appears. It’s clear that the courts have sided with defendants in almost every single type of employment discrimination case. That is, except for gender discrimination cases. Or, to put things differently, plaintiffs have been far more successful in proving gender discrimination claims in jury trials, than any other type of employment discrimination claim, in Los Angeles County between 2009 and 2018.
Placing these outcomes next to those for all employment-related cases provides some perspective. By zooming out, we learn that plaintiffs and defendants fared similarly in retaliation and wrongful termination trials, with plaintiffs experiencing a slight advantage between 2009 and 2018. The story changes with sexual harassment cases. And it changes even more with employment discrimination cases.
Historically speaking, federal courts have been the primary place for relief in employment discrimination claims. In fact, employment discrimination claims have sometimes represented “the largest single category of civil litigation cases in federal court.”
This, however, is no longer the case. It has now become common knowledge that the federal courts tend to disfavor employment discrimination plaintiffs. In Bell Atlantic Corp. v. Twombly (2007), the Supreme Court of the United States adopted a new, more stringent plausibility standard, one that increases the burdens a plaintiff must bear in an employment discrimination case. It has become much more difficult for a plaintiff to counteract a motion to dismiss an employment discrimination claim in a federal court.
Not only that, but many state courts have more plaintiff-friendly employment discrimination laws. For example, the Fair Employment and Housing Act of the State of California offers protections for employees that do not exist at the federal level. In California, employment discrimination is defined more broadly, adding sexual orientation, gender identity, and marital status to its list of protected categories. It is also applicable to a larger number of businesses. Many federal anti-discrimination statutes cannot be triggered until a business has at least fifteen employees. However, in California, these statutes can apply to businesses with five or more employees.
The result? The changing landscape of federal pretrial policies, along with more favorable state law statutes, have pushed employment discrimination cases away from federal courts, with most plaintiffs opting to file their claims in the state court system.
There is at least one reason why such a change might matter. The life tenures granted to federal judges affords a level of judicial independence that does not exist at the state level. California Superior Court judges must be elected by their county’s voters every six years, a situation that can expose the rulings of state court judges to more political pressures than those of federal court judges.
How will the expanded definition of race embedded within Senate Bill 188 affect these trends? The moves of policymakers suggest that employment discrimination filings are difficult to win because of the way the law is written. Legal analytics, however, suggests that there are more complex structural issues at play, issues that involve the politics of judicial independence.
 This analysis is specific to cases that have made it through to verdict. It should be noted that the low verdict success rates for plaintiffs may be tied to defendants settling cases that they believe have merit, long before they actually go to trial.
 Schneider, Elizabeth M. 2010. The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases. University of Pennsylvania Law Review 158(2):517-570.
Nicole Clark is the CEO/Co-Founder of Trellis: Legal Intelligence and a former business and employment litigator.