Labor & Employment

More blacks than whites eschew lawyers in job bias suits; are attorney weeding procedures to blame?


A new study of employment discrimination cases has found a racial disparity in the percentage of plaintiffs who go to court without a lawyer.

African-Americans are 2.5 times more likely than white plaintiffs to file employment discrimination claims pro se, according to the study (PDF) by the American Bar Foundation. Other racial minorities, including Hispanics and Asians, are 1.9 times more likely to file pro se than their white counterparts.

“This difference is salient,” the study says, “because pro se plaintiffs have significantly worse litigation outcomes than those with representation. Furthermore, we show that pro se plaintiffs tend to misunderstand their legal issues and … feel that the courts have failed them.” A press release summarizes the findings.

Factors that contribute to the disparity include a lack of information about the legal system, lack of trust in lawyers, and lack of time and resources to search for a lawyer, according to authors Amy Myrick, Robert Nelson, and Laura Beth Nielsen. The study also points to prior research showing minorities have smaller professional networks and less access to “elite” networks of legal professionals.

Lawyers may also be partly to blame for the racial disparity because of the way they weed out cases, according to the study. The researchers spoke to 20 plaintiffs lawyers, 19 of whom were white, about their screening methods. Many of the lawyers estimated they accepted no more than 10 percent of cases from potential clients. Lawyers rejected cases when potential clients didn’t mention specific details or were unable to pay consultation fees. The lawyers also took into account perceived demeanor and mannerisms, and favored potential clients who had assembled documents as part of their case.

The potential clients’ past salary was also a factor. Lawyers who charged contingency fees favored clients who had earned high pay, while those who charged on an hourly basis were less concerned about past paychecks.

Many lawyers said they gave potential clients pessimistic assessments of their cases to discourage those who were not serious. One lawyer for example, said he told potential clients who called the office, “From what you tell me, I don’t think I can help you. If you really want a consultation, I’ll give it to you.” The study suggested this screening method disfavored those in lower-level jobs who aren’t used to persuasive speaking.

“While lawyers claimed to have an ability to assess the merits of a case almost instantly, their initial screening methods seem to favor some clients for reasons unrelated to case merits,” the study said. “They favor clients who know how to quickly and compellingly ‘sell’ their case, or who have a personal vouching connection that takes them past the first call.”

The study, published in the New York University Journal of Legislation and Public Policy, examined a random sample of 2,100 employment civil rights cases filed in federal court between 1988 and 2003.

Prior coverage:

ABAJournal.com: “More Than Half of Bias Plaintiffs in ABF Study Deemed Their Lawyers Incompetent”

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