New studies tarnish the image of color-blind and race-blind judges

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in Discrimination and Harassment,Employment Law,Human Resources

Here’s something to consider the next time you’re pondering whether or not to settle an employment lawsuit: A pair of new studies say that a judge’s race and gender can make a huge difference in the outcome of the cases he or she hears.

The first study looked at federal cases that dealt with racial harassment. It found that employee/plaintiffs lost their race-harassment cases just 54% of the time when the judge handling the case was an African-American. However, when the judge handling the case was white, the plaintiffs lost their cases 79% of the time. Loss rates were also higher with Hispanic judges (81%) and Asian-American judges (67%).

"Our findings suggest that judges of all races are attentive to the relevant facts of the cases but may reach different conclusions depending on their races," said the study, authored by Pat Chew, a professor at the University of Pittsburgh School of Law, and Robert Kelly, a professor at Carnegie Mellon University Tepper School of Business. The professors examined a random selection of 40% of reported racial harassment cases between 1981 and 2003 from six federal circuits.

"These findings counter the traditional myth that the race of a judge would not make a difference—a myth premised on a presumption of a formalistic and objective decision-making process," said the study.

A second study has said employees were at least twice as likely to win sexual harassment cases in federal appeals courts if a female judge was on the appellate panel. The study authored by Jennifer L. Peresie in the Yale Law Journal examined 556 federal appellate court cases that involved sexual discrimination or sexual harassment claims.

According to that study, "Because the data showed significant gender disparities after controlling for other factors affecting judges’ decisions—most significantly ideology—it is reasonable to conclude that direct and indirect effects of gender exist beyond the data set, at least in Title VII sexual harassment and sex discrimination cases."

The make-up of the bench: Currently, according to the race study, 20% of judges in the United States are women. When looking at a racial breakdown, 81% of federal judges are white, 11% are African-American, 7% are Hispanic and 1% are Asian-American.

The studies were featured in the recent issue of the American Bar Association (ABA) Law Journal and were the focus of a seminar at an ABA conference on Feb. 6, 2010.

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