New Research: Fourth Circuit is Now a Worker-Friendly Venue Posted on November 17, 2014 by Larry Bodine An 11 percent swing towards worker-friendly outcomes is a statistically significant difference. Employees have been far more successful on appeal over the last six years in the Fourth Circuit, according to research by Brian Clarke, an employment law and civil procedure professor at Charlotte School of Law. Clarke’s research demonstrates a significant shift in the Fourth Circuit from what was previously a jurisdiction that dependably issued employer-friendly verdicts. The findings have important implications for employment law attorneys practicing in this venue, based in Richmond, VA, encompassing nine district courts in Maryland, North and South Carolina, Virginia and West Virgina. With an area of expertise in both employment law and civil procedure, Brian Clarke has practiced employment law for over eleven years. Clarke is also Co-Director of the Charlotte School of Law Employment Law Certificate Program, and he has been with Charlotte School of Law since 2011, totaling more than 15 of involvement in employment law. Clarke’s interest sparked when he became involved in the North Carolina and South Carolina Bars’ Fourth Circuit annual updates beginning in 2008. Additionally, Clarke read every labor and employment law opinion from 2007, and in doing so, started to see a distinct pattern. By looking at the time frame beginning in 2004, when the Fourth Circuit was at its most employer-friendly, through 2012, during President Obama’s first and second terms, Clarke coded the Fourth Circuit employment law cases based on the way they were decided. Additionally, Clarke organized his research by tracking judges who were appointed during this time frame. The Obama years The Fourth Circuit shift in ideology is apparent in cases where employees lost in the district court and then appealed to the circuit court. Clarke has found that employees have been far more successful on appeal in the years following President Obama’s election than they were in the years before his term of office. According to Clarke’s research, the Fourth Circuit has become demonstrably more worker-friendly than it was, moving from a dependably employer-friendly court to a more worker-friendly court. Clarke noted that this trend began in 2010, when President Obama’s judicial nominees started taking their seats. Professor Clarke used the Eighth Circuit as his control group for his research because it had no judicial nominees during President Obama’s first term. In contrast, the Fourth Circuit had the most judicial appointments by President Obama during his first term. 11 percent swing Clarke noticed that the Fourth and Eight Circuits share many ideological similarities. Looking at the two circuits beginning in 2004, Clarke observed the Fourth and Eighth Circuits are both ideologically compatible but also starkly different in terms of President Obama’s influence. Statistically, in comparing the two circuits during the years before the president’s first term from 2004-2008, the Fourth Circuit was only 1.5% more worker-friendly than the Eighth Circuit. However, during the years following President Obama’s election in 2008, the Fourth Circuit became almost 12.5% more worker-friendly than the Eighth Circuit. An 11 percent swing towards worker-friendly outcomes is a statistically significant difference. If the Fourth Circuit had behaved like the Eighth Circuit during the Obama years, employees would have won about 24 cases from 2010-2012. Instead, employees won 40 cases between 2010-2012, which is substantially more than Clarke expected. Two cases stand out Clarke’s research will be published in the University of Virginia’s Journal of Law and Politics in early 2015. Two cases that stood out for Professor Clarke that demonstrate the Fourth Circuit has become more employee-friendly involve the Americans with Disabilities Act and sexual harassment claims. The most recent case is Summers v. Altarum Inst. Corp., 740 F.3d 325 (4th Cir. 2014). Clark says, “This is a pretty big case and one of several this term that illustrate the Fourth Circuit’s ideological shift. That a serious, but temporary injury could be a “disability” within the meaning of the ADA is not at all clear from the text of the statute or the legislative history of the ADA.” “The court’s reliance on the EEOC’s interpretation to that effect is not something that would have happened a few short years ago,” he said. In Mosby-Grant v. City of Hagerstown, 630 F.3d 326 (4th Cir. 2014), the court revived a hostile work environment case brought by a police recruit. It triggered a vigorous dissent from one of the conservative judges of the court., who expressed shock and disbelief at the court’s new approach to deciding cases. A look at other courts “The next step is taking a look at other courts, such as the Third Circuit, which is another court where President Obama has had significant influence, and trying to find the ‘tipping point’ in those employment law cases,” Clarke said. The research is important to lawyers advising clients in the Fourth Circuit. “I would tell clients, ‘We’re in the Fourth Circuit: it’s very employer-friendly, so employers start out in a good position just based geographically on where we are.'” But these recent changes to the Fourth Circuit should change the calculus. Plaintiffs used to start out “in the hole,” but these changes in the Fourth Circuit should empower plaintiff lawyers to push the envelope and take a run at established precedent because the courts could very well establish the outcomes differently. Clarke presented his preliminary findings at the Eighth Annual Labor and Employment Law Colloquium in 2013, and shared his nearly-final findings with the Southeastern Association of Law Schools’ annual meeting. Most recently, Clarke shared his findings at the 30th Annual North Carolina and South Carolina Labor & Employment Law CLE in Asheville, North Carolina, on October 24, 2014.