Latest Legal News: Yes, Judges' Race and Gender Matter

A daily look at legal news and the business of lawThe ABA Journalreports on a 2009 law review article and a 2005 law review note that analyze decisions in workplace racial harassment cases and sexual discrimination and sexual harassment cases, and find that the race and gender of the judge dramatically impacts a plaintiff's chance of winning.

Racial harassment cases are hard for plaintiffs to win; in all, the plaintiffs won only 22% of the time. When racial harassment claims are heard by white judge, the plaintiffs' odds dip slightly, and they win only 20.6% of the time. When the judge is African-American, however, the plaintiff wins 45.8% of the time -- more than twice as often. Interestingly, Latino judges were even more pro-defendant than whites, with plaintiffs winning only 19.0% of cases. Gender, though, had only a minor impact on the outcome of racial discrimination cases: Women ruled for the plaintiff 25.6% of the time, and while men ruled for the plaintiff in 21.3% of cases.

The other characteristic the racial harassment study examined was the political party of the president who appointed the judge, a status that most people assume has a big impact on judicial decision-making. And political party does, but not as much as race: Republican-appointed judges ruled for the plaintiff least often of all, at 17%, while Democratic-appointed judges ruled for plaintiff 29% of the time.

Sexual harassment cases are similarly hard for plaintiffs to win. In the study, they prevailed only 25% of the time. Unlike the racial harassment study, this one focused only on appellate decisions, and looked at whether the composition of the panels -- three men, one woman and two men, two women and one man, or three women -- impacted the outcome. It did: Panels of three men ruled for the plaintiff 17% of the time, but that doubled to 34% if one woman was on the panel, and rose to 43% if two women were. Only one case was decided by an all-female panel, and it ruled against the plaintiff.

As with racial harassment cases, the party of the appointing president also had a noticeable impact on plaintiffs' chances, with Democratic judges siding with plaintiffs more often than Republican ones. But again, gender was a more powerful predictor of outcome than political party. Republican female judges ruled for the plaintiff 29% of the time, more than the overall 25% rate and virtually the same as the Democratic male judges' rate of 30%. Democratic women judges found for the plaintiff most often, at 43%.

The standard fact pattern in racial harassment cases involves an African-American plaintiff and white supervisors/coworkers as defendants, while in sexual harassment cases, the plaintiff is typically a woman suing male supervisors/coworkers. Perhaps the "empathy" that President Obama controversially discussed in nominating Supreme Court Justice Sotomayor is at work here. If the studies are right, however, a "wise Latina" may not be any more likely to favor a racial harassment plaintiff than the typical white male judge. (And most judges are still white and male.) But she, like her "sisters" of all races, particularly those appointed by Democratic presidents, is likely to be more inclined to favor the plaintiffs in sexual harassment cases.
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