Richardson Suit Impact Hard to Predict

Ex-Hogs basketball coach Nolan Richardson’s federal racial discrimination lawsuit against the University of Arkansas may make for juicy gavel-to-gavel court coverage.

University and athletic department dirty laundry, along with the appearance of athletic department director Frank Broyles on the witness stand, has created a show trial feel.

But Arkansas attorneys who handle both sides of racial discrimination lawsuits believe the Richardson lawsuit, win or lose, will have little lasting effect outside of the university on racial discrimination lawsuits.

“It certainly has been interesting, but there is no long term precedential effect,” said Stephen Jones, a partner with Jack Lyon & Jones PA of Little Rock. “In that sense, people are maybe more aware, but no one’s a winner. Nolan and the UA reputa-

tions have been sullied. There are no winners.”

Darrell O’Neal, a Memphis attorney handling the case of ex-Pine Bluff Police Chief Nathaniel Clark, who claimed in a federal lawsuit filed last year that racial bias led to his termination by the city, also said he didn’t see the Richardson case changing much.

“The law has already made it better for employers these days,” said O’Neal, who recently represented a client who obtained a settlement after suing the National Football League’s Tennessee Titans. “Society has become more callous to race issues.”

John DiPippa, associate dean of the University of Arkansas at Little Rock’s William H. Bowen School of Law, however, said some impact might be felt outside the courtroom.

“I don’t think it will have much effect at all,” DiPippa said. “Only if the case makes it to a higher court will it have a future effect (on cases). Any effect it might have would probably be psychological … but unlikely.”

Chris Heller, a partner at Friday Eldredge and Clark LLC of Little Rock, said Richardson’s case could make people more aware of their rights to pursue such claims, but many are already “aware of what’s prohibited by law and their rights to challenge.”

They don’t believe the Richardson case will spur the filings of more lawsuits. If anything, the number of racial discrimination lawsuits will remain relatively stable, as they have remained over the last few years in Arkansas.

According to the court clerk’s office of the U.S. District Court at Little Rock, which covers the eastern district of Arkansas, there were 431 racial discrimination lawsuits filed in 2003 — about 19.5 percent of all civil lawsuits filed in the federal court.

That was down slightly from 2002 when 440 such lawsuits were filed for 21 percent of all federal civil lawsuits. There were 376 filed in 2001, for 17.3 percent of all federal civil lawsuits.

The court tracks the number of discrimination lawsuits filed, but not whether discrimination claimed is based on race, religion, gender, age or other categories.

Job discrimination lawsuits dropped slightly — about 10.2 percent — from 1999 to 2003, according to the court clerk’s office.

O’Neal said a shift several years ago by the U.S. Supreme Court has placed more burdens on plaintiffs to prove their cases.

“It’s crazy now,” O’Neal said. “[Defendants] have to do things repeatedly (to win in court).”

On the flip side, Jones said decades of lawsuits have taught employers to clean up any discriminatory practices or behaviors in the workplace.

More diversity in the marketplace also has encouraged more workplace diversity, he said. As a result, there are fewer strong plaintiffs’ cases.

“Some facts are not as likely to occur now as they were 20 years ago,” Jones said. “From what I see, it seems to be more cases where someone just didn’t like something at work and felt they were treated unfairly. But there’s no law against being treated unfairly … unless it’s because you fall into a certain group.

“People are trying to force facts to conform to the law,” Jones said.

O’Neal said the best plaintiff’s case is where employees’ abilities or actions are comparable, but their race or results differ.

Jones also acknowledged that, “Increasingly, the courts have an attitude for findings that claims can be dismissed.”

Heller said over 20 years there has probably been a slow decline in the number of workplace lawsuits.

“There has been a two decade trend in legal decisions, mostly with the Supreme Court, but some also with some circuit courts, to make it more difficult to file these cases,” said DiPippa. “There are a lot of hoops to jump through, and my perception is they’re difficult to file and difficult to win.”

Another trend is mediation of such lawsuits. O’Neal said at least half of the cases he handles end up in mediation before federal magistrate judges or private mediators.

Mediation allows the weaknesses and strengths of each side to be exposed and for parties to find a middle ground instead of spending time and money on long courtroom battles, Heller said. Less than half of his cases go to mediation, but the number is growing.

Cash settlements can occur, but frequently the result is an agreement that an ex-employee won’t get a bad recommendation. It also helps keep cases quiet for shy defendants.

O’Neal estimated he turns down 90 percent of clients who approach him because of weak cases.

Jones said many lawsuits don’t pay off for plaintiff’s attorneys unless they win and more plaintiffs are filing on their own. DiPippa said he didn’t believe there was big increase in Pro Se filings.

“People’s perceptions are that plaintiffs win all the time, but actually they lose most of the cases,” DiPippa said. “You have to show what’s inside someone’s head, not what they did. That’s difficult to do under the best of circumstances.”

Job Discrimination Lawsuits Filed

2003 — 237
2002 — 228
2001 — 213
2000 — 197
1999 — 264

Source: Court clerk’s office, U.S. District Court for the Eastern District of Arkansas.