Earlier this week in Part 1 of our series on racial and ethnic bias, we examined inherent biases in our criminal justice system. Today, we will explore our civil justice system.
For those who might not know our justice system or need a quick refresher course, the criminal justice system deals with crimes against society and focuses on punishment and public safety, while the civil justice system resolves disputes between individuals, organizations, or corporations, with the goal of compensation or remedy rather than punishment.
In a criminal case, it is usually a prosecutor or government attorney against a defendant—in a civil case, it is a plaintiff against a defendant.
The standard of proof is different. In a criminal case, the prosecutor must prove guilt beyond a reasonable doubt. The civil standard is far less burdensome. A preponderance of the evidence is all that is required, some small percentage over 50%. Some cases might be criminal and civil. If you recall the two O.J. Simpson trials (criminal and civil) this difference is why he was found not guilty in the criminal case but responsible in the civil case. In a criminal case, a guilty defendant may be fined, put on probation, or imprisoned; in a civil case, the defendant pays money damages, provide restitution, or some other type of specific performance.
Part 2: The Civil Justice System
Consistent with our study of the criminal system, racial and ethnic bias also exists in the civil justice system, though it is less studied and discussed. Perhaps that’s because no one’s freedom is at stake in the civil arena. Cases include disputes related to employment, housing, healthcare, consumer rights, family law, and more. Bias in the civil justice system may manifest in various ways, impacting minorities and people of color in their access to justice and the outcomes of civil litigation.
Areas of Bias in the Civil Justice System:
1. Disparities in Access to Legal Representation
Limited Access to Legal Aid
Minority and low-income individuals, who are disproportionately people of color, often face significant barriers in accessing quality legal representation in civil cases. This disparity can result in unfavorable outcomes in areas such as eviction, employment discrimination, family law disputes, and debt collection.
Example: Studies have shown that low-income Black and Latino tenants are cost burdened and less likely to have legal representation in eviction proceedings, which increases the likelihood of losing their homes.
Pro Se Litigants: Due to the high cost of legal representation, many minorities represent themselves in court (pro se litigants), which significantly reduces their chances of success, especially when facing well-represented opponents such as corporations, landlords, or banks.
2. Employment Discrimination Cases
Racial Bias in Employment Lawsuits
Workers of color are more likely to face workplace discrimination, yet they may experience unequal treatment when seeking justice through the civil court system. Studies suggest that complaints of racial discrimination by Black and Latino workers are less likely to succeed than those brought by white plaintiffs, even when the facts of the cases are similar.
Example: A study published in the Law and Society Review found that Black plaintiffs alleging employment discrimination were less likely to win their cases compared to white plaintiffs, even when controlling for the merits of the case.
3. Bias in Housing Discrimination Cases
Fair Housing Lawsuits: While laws like the Fair Housing Act are intended to protect people of color from discriminatory housing practices, these cases are often difficult to win. Bias against minority plaintiffs may result in their complaints being taken less seriously by courts or dismissed without full consideration.
Example: Minority plaintiffs bringing cases against landlords, real estate agents, or mortgage companies for discrimination in housing often face an uphill battle in proving their cases due to institutional bias and the high burden of proof.
Mortgage Discrimination: Predatory lending practices have disproportionately targeted Black and Latino communities, leading to higher foreclosure rates. When homeowners attempt to sue mortgage lenders or banks for these practices, they often encounter difficulty in proving bias or fraud, further exacerbating the wealth gap between racial groups.
4. Family Law: Child Custody and Divorce
Bias in Child Custody Cases:
In family law disputes, racial and ethnic minorities often face bias in child custody decisions. Judges may hold stereotypical views about parenting abilities based on race or socioeconomic status, leading to unfavorable outcomes for minority parents.
Example: Studies suggest that Black mothers are more likely to lose custody of their children to state agencies or white foster families in cases involving allegations of neglect or abuse, even when white parents in similar situations retain custody.
Divorce Settlements: Minority women, particularly Black and Latina women, may experience bias in divorce settlements, particularly in alimony or property division. Stereotypes about income, employment prospects, or the ability to provide financial stability may influence judicial decisions.
5. Consumer and Debt Collection Lawsuits
Predatory Lending and Debt Collection:
Minority communities are disproportionately targeted by predatory lending practices, payday loans, and high-interest financial products. When these cases reach civil court, people of color may experience bias in debt collection judgments, leading to harsher outcomes such as wage garnishment or repossession.
Example: Studies have shown that Black and Latino debtors are more likely to face aggressive debt collection tactics, and civil judgments often favor creditors, regardless of whether the loans were obtained under unfair or predatory terms.
6. Bias in Personal Injury and Medical Malpractice Cases
Lower Damages Awarded to Minority Plaintiffs
In personal injury or medical malpractice cases, minority plaintiffs often receive lower damages awards compared to white plaintiffs for similar injuries or harm. Racial bias, either explicit or implicit, can influence the way juries and judges evaluate the severity of the harm or the value of the plaintiff’s life and future earnings.
Example: Research indicates that Black plaintiffs in personal injury cases tend to receive lower compensatory and punitive damages than white plaintiffs, even when the injuries are similar.
Medical Malpractice: Minority patients, particularly Black women, are more likely to experience medical malpractice or substandard healthcare, but when they seek legal redress, they often face greater challenges in proving their claims and obtaining just compensation.
7. Bias in Immigration and Civil Rights Litigation
Immigration Court Bias
Immigration cases, including asylum claims, are often decided with significant bias. Immigrants from predominantly Black or Latino countries may face harsher judgments in civil immigration courts, where judges have significant discretion in granting or denying relief.
Example: Data shows that asylum seekers from Central American and African countries are less likely to be granted asylum compared to those from European or Asian countries, reflecting possible racial or ethnic bias in immigration courts.
Civil Rights Cases
Lawsuits alleging racial discrimination in public accommodations, policing, or education can be dismissed or fail to reach trial due to institutional biases that downplay the harm suffered by plaintiffs of color.
Example: Cases brought by minority plaintiffs against police departments for racial profiling or excessive use of force are often dismissed before trial, and even when they proceed, plaintiffs face an uphill battle proving systemic bias in courts.
8. Bias in Jury Selection and Judicial Discretion
All-White Civil Juries
Like criminal courts, civil cases can suffer from a lack of diversity on juries.Lawyers may use peremptory strikes to eliminate minority jurors, resulting in all-white juries that may be less sympathetic to the experiences of minority plaintiffs.
Example: In civil rights cases involving police brutality or racial discrimination, the presence of an all-white jury can lead to decisions that are less favorable to plaintiffs of color.
Judicial Discretion and Implicit Bias
Judges in civil courts, like those in criminal courts, are not immune to implicit bias. Judges may unconsciously favor white litigants or corporations over minority plaintiffs, particularly in areas like employment, housing, or personal injury law.
Racial and ethnic bias permeates the civil justice system in various ways, from the lack of access to quality legal representation to unequal treatment in family law, employment, housing, and personal injury cases. These disparities often reflect broader societal biases, and they disproportionately harm minorities and people of color by limiting their ability to seek and obtain justice in civil disputes.
Addressing these issues requires systemic reform, including increasing access to legal aid, ensuring diversity in juries, and training judges to recognize and mitigate implicit bias.
Next: Part 3: Bias in other aspects of life
Mark M. Bello is an attorney and author of the Zachary Blake Legal Thriller Series and children’s social justice/safety picture books. He also hosts the popular bi-weekly podcast, Justice Counts (https://www.spreaker.com/show/justice-counts_1). Mark’s books may be found at all online booksellers and on his website, at https://www.markmbello.com.
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