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New Study Examines Racial Patterns of Lawyer Use in Employment Discrimination Cases

March 20, 2013, ABF news

A recent ABF study considers how race may play a role in plaintiffs’ ability to find a lawyer.  “Race and Representation: Racial Disparities in Legal Representation for Employment Civil Rights Plaintiffs” (New York University Journal of Legislation and Public Policy, Vol. 15:3) finds a marked racial disparity in legal representation rates between whites and racial minorities in employment discrimination cases.

Lawyer-sociologist co-authors Amy MyrickRobert L. Nelson, and Laura Beth Nielsen write that the disparity may result from plaintiffs’ beliefs about lawyers, economic factors, and the unintended effects of how lawyers pre-screen their clients. Especially in this complex and document-intensive area of the law, having a lawyer significantly increases a plaintiff’s ability to obtain a positive outcome.

 Among the study’s key findings are:

  • African Americans are 2.5 times more likely than white plaintiffs to file employment discrimination claims pro se, or without a lawyer. Other racial minorities, including Hispanics and Asians, are 1.9 times more likely to file pro se than their white counterparts.
  • Plaintiffs who lack legal representation are 14 times more likely to have their cases dismissed and 8 times more likely to lose on a motion for summary judgment, compared to plaintiffs who had a lawyer throughout litigation.
  • Lack of information about the legal system, lack of trust in lawyers and their motives, and lack of time and resources to go through the arduous process of searching for a lawyer are all “bottom-up” factors that contribute to the disparity in representation.
  • Interviewees described difficulty in locating a lawyer who would work on contingency, which can ease the initial financial burden when hiring a lawyer. Finding a lawyer to agree to work on contingency was especially difficult for low-income individuals.
  • Plaintiffs’ lawyers’ highly subjective screening processes may alienate many potential minority clients who lack the social and economic resources to advance past the preliminary steps of finding a lawyer and successfully retain legal services.
  • Lawyers described favoring clients based on criteria unrelated to the merits of their case, such as perceived demeanor, mannerisms, or having a personal referral.

At the systemic level, racial disparities in representation mean that the groups most affected by discrimination lack the resources to mount effective challenges through the courts. “The legal system is supposed to redress discrimination in the workplace, and it relies on lawyers to advocate for plaintiffs,” said co-author Amy Myrick. “So it’s a serious problem if the same factors promote racial disparities in both settings. Minority plaintiffs cannot obtain lawyers as easily as whites, which ends up replicating other inequalities that civil rights law is designed to mitigate.”

The authors suggest EEOC reforms, education efforts such as courthouse helpdesks, and the expansion of court appointments to encourage equal access to lawyers among minorities.

To read the full-text news release on the study, please click here.

An earlier piece of ABF research, "Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation," uses the same dataset to examine plaintiffs' and defendants' perceptions of fairness in employment discrimination litigation.  A multimedia project resulting from this article allows readers to hear the authors' arguments in the voices of the interviewees themselves.

Interested parties may click here to access more ABF research and findings on the topic of employment civil rights.

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