6 - Racial Disparities in Legal Representation for Employment Discrimination Plaintiffs

Summary

Myrick, Nelson and Nielson evaluate the role of race in the decision to file pro se in employment discrimination litigation. The authors show that black plaintiffs are 2.5 times more likely to file pro se than white plaintiffs, a disparity that is larger than any other plaintiff characteristics tested, including sex and occupation. Data from employment discrimination cases further indicate that pro se plaintiffs have significantly worse litigation outcomes than those with representation.

This chapter uses statistical analysis to show that minority plaintiffs in employment discrimination lawsuits – in particular African Americans – are much more likely than white plaintiffs to file without a lawyer. This difference is salient 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. While past access to justice initiatives have addressed these negative consequences of lacking a lawyer, they have not systematically examined racial differences in representation rates, or tried to explain why these differences exist. Remarkably, access to justice approaches have largely overlooked race, instead focusing primarily on poverty as a barrier to finding a lawyer. This chapter shows that race matters in representation rates. It then examines possible reasons for this ignored but troubling disparity. We show that race operates in complex ways, both for minority plaintiffs seeking lawyers, and for the lawyers who decide whether to accept them as clients.

PRO SE LITIGATION: DATA AND PAST FINDINGS

Compared to represented plaintiffs, pro se plaintiffs were significantly more likely to have their cases dismissed or lose on summary judgment, and were less likely to reach early settlement. This empirical evidence proving the serious disadvantage that pro se status entails is consistent with other access to justice research on various types of legal action. Although we know of no other studies that look specifically at the outcomes for pro se employment discrimination plaintiffs, a growing body of work shows that employment discrimination litigation in general disfavors plaintiffs. In addition, research on pro se plaintiffs suggests that they suffer most when they file claims involving complex or document-intensive areas of law, and that such issues may compel plaintiffs to seek an attorney instead of attempting to self-represent.