Minna J. Kotkin


This article explores how secrecy has come to pervade employment discrimination litigation as a consequence of procedural and substantive changes in the law over the last twenty-five years. In contrast to products liability and toxic tort claims, where secrecy can endanger the public health and safety, secrecy in the discrimination context has a less dramatic impact and thus, has attracted little attention. But when very few discrimination claims end in a public finding of liability, there is a significant cumulative effect, creating the appearance that workplace bias is largely a thing of the past. The trend towards secrecy can be traced to several developments. First, by allowing arbitration of discrimination claims, the Supreme Court signaled that the deterrence goals of discrimination legislation do not take precedence over the values of arguably more efficient and expedient private resolutions. Second, FRCP amendments that mandate judicial management of the discovery process and eliminate discovery product filing changed the default position from transparency to secrecy in the pre-trial stages of litigation. Finally, the federal courts' emphasis on facilitating resolutions and contingent fee compensation for plaintiffs' attorneys have contributed to the ubiquity of confidential discrimination settlements.

"Sunshine" laws prohibiting or restricting confidentiality agreements are not drafted broadly enough to encompass employment discrimination cases, but EEOC rulemaking could require judicial oversight of secret settlements. Absent such regulation, aggregate data on employment discrimination settlements should be collected and made publicly available to assist litigants, lawyers and the judiciary, and to inform the public discourse on workplace bias.

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