Employers lose approximately two out of three cases tried to juries. This result can be explained in part by the fact that a large number of the cases employers otherwise would win are thrown out on summary judgment. Nevertheless, most employers who do not dispose of a case on summary judgment will settle, if possible, the cases they believe they have a significant chance of losing: They will try only those they believe they can win. Consequently, the fact that employers lose two out of three of the cases they try makes a jury trial a daunting prospect.

The reasons for this low success rate are varied. First, and probably most significant, is the fact that jurors’ perspectives are those of employees, not employers. They hold employers to the standard of behavior they expect from the entities that employ them, and therefore are prone to excuse employee performance failures and harshly treat employer neglect, dishonesty or oversight.

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