A recent study shows that female plaintiffs in sex discrimination cases are more likely to prevail if a female judge is randomly assigned to the case, suggesting the existence of gender bias among male judges.
The key is how judges rule on pretrial motions, writes Matthew Knepper, PhD, a research economist with the Bureau of Economic Analysis.
Knepper found that female judges are 15 percent less likely than male judges to grant motions filed by employer/defendants. Knepper suggests this may encourage employers to infer that their chances of success at trial are lower and to engage in serious negotiations to settle the case. He says “litigants are more inclined to bargain in the shadow of the judge when the outline of that shadow is clearer.”
Knepper contends his study, which appeared in a recent issue of the Journal of Labor Economics, is “the first to provide quasi-experimental evidence of judicial gender bias.”
Knepper says research in the past has focused on trial outcomes and found no statistical difference between how male and female judges rule. However, he writes, as few as five percent of lawsuits ever get to trial – the vast majority are dismissed or settled prior to trial. He says prior research on trial outcomes “underestimated the amount of judicial gender bias prevailing in workplace sex discrimination cases.”
Research shows judges are prone to prefer the social group to which they belong.
Knepper examined a sample of 1,000 workplace sex discrimination cases brought before the EEOC between 1997 and 2006. He says female plaintiffs filing workplace sex discrimination claims were 6 to 7 percentage points more likely to obtain a settlement when a female judge was randomly assigned to the case, and 5 to 7 percent more likely to win compensation.
Knepper says he could not conclude absolutely whether it is female or male judges who are biased. The study finds only that “relative to female judges, male judges disfavor female workers who allege that they are victims of workplace sex discrimination—60% of which come in the form of sexual harassment.” Knepper points to evidence of male bias but adds that female judges may be better able to discern “less egregious forms of sex discrimination.”
Knepper refers to a “substantial and growing body of literature that exposes the existence of ‘ingroup’ judicial biases … [judges] are prone to offering preferential treatment to the social group to which they belong.”
Knepper found that there was no significance between judges appointed in Republican and Democratic administrations.