A new American Bar Foundation study finds a marked racial disparity in legal representation rates between whites and racial minorities in employment discrimination cases.
The disparity, according to the study data, may result from plaintiffs’ beliefs about lawyers, economic factors and the unintended effects of how lawyers prescreen their clients. Plaintiffs without lawyers are dramatically less likely than other plaintiffs to gain a successful outcome.
The study is entitled “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).
In their report, lawyer-sociologist co-authors Amy Myrick, Robert L. Nelson and Laura Beth Nielsen write that both “bottom-up” plaintiff views and behaviors and “top-down” features of the legal system contribute to these racial disparities in legal representation in employment discrimination cases.
The “bottom-up” views, they say, are shaped by wider social inequities in education, income, and access to social networks; the “top-down” shaped by legal market dynamics and how lawyers view plaintiffs. While previous studies have addressed how poverty affects plaintiffs’ ability to find a lawyer, few have considered how race may play a role.
The study employs a combination of statistical data and in-depth interviews with parties and lawyers.
Using a randomized sample of 2,100 employment civil rights cases filed in U.S. federal district court between 1988 and 2003, the study finds that 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.
This considerable disparity is not significantly redressed by plaintiffs gaining counsel after filing. The statistical disparities hold even after controlling for other characteristics of plaintiffs, such as gender, occupation and other characteristics of the cases, such as the basis of the alleged discrimination.
Turning to interviews with a systematically selected subsample of plaintiffs and plaintiffs’ lawyers, Myrick, Nelson and Nielsen argue that the disadvantages confronting racial minorities in other aspects of their lives also disadvantage them in their search for a lawyer.
“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.”
According to the study, 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.
The authors also point to prior research that shows that racial minorities, especially African-Americans, have smaller professional networks and less access to “elite” networks of legal professionals.
“Top-down” processes are also at work, they note.
How plaintiffs’ lawyers select clients may unintentionally contribute to the racial disparity in representation rates. The lawyer-interviewees described a highly subjective screening process that 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 reported accepting only a small fraction of cases, merely 10 percent, and rejected individuals who did not mention predetermined details that the lawyer considered essential, or were not able to pay expensive consultation fees.
They also described favoring clients based on criteria unrelated to the merits of their case, such as perceived demeanor, mannerisms or having a personal referral.
Myrick, Nelson and Nielsen also uncover evidence of the difficulty in locating a lawyer who would work on contingency, which can ease the initial financial burden when hiring a lawyer.
Lawyers spoke of a preference for clients with higher salaries who would be more likely to collect significant damages if their case were successful.
If the individual’s salary was low, lawyers would only accept the case at an hourly rate.
Because racial minorities’ salaries are lower nationally, the authors find that these plaintiff lawyers’ practices could exacerbate racial disparities.
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. 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.
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.
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