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.
The Alaska Supreme Court has upheld the dismissal of a public works employee who made statements that other employees in his workplace interpreted as threats.
Plaintiff Tom D. Nicolos claimed his statements did not constitute threats or misconduct under the personnel rules of the North Slope Borough Department of Public Works but were a cry for help due to a mental health crisis.
Nicolos allegedly told his boss he was “not in a good place” and was having homicidal thoughts. He then allegedly told a counselor that he had a “premeditated plan to use firearms to harm or kill people at his workplace.” The counselor notified Nicolos’ boss.
Nicolos said his discharge violated the Americans with Disabilities Act (ADA).
The Alaska Supreme Court recently upheld Nicolos’ dismissal, ruling that a threat need not be intentional to constitute violence in the workplace. Alaska’s high court said an employee can be punished for threatening statements or behavior “so long as it could be interpreted by a reasonable person as conveying intent to cause physical harm” Moreover, the Court said the ADA’s protection does not extend to an employee who is terminated because he cannot “perform the essential functions[his] position … (with or without reasonable accommodations.” The Court said it is an essential function of a job to refrain from making others in the workplace feel threatened for their own safety.
WOULD A REASONABLE PERSON PERCEIVE THE COMMENT AS THREATENING?
The Borough Personnel Office agreed Nicolos’ threats were a manifestation of his disability but said Nicolos violated the Borough’s policy against violence in the workplace. They concluded no reasonable accommodation could be made for Nicolos “as his co-workers would always be in fear for their safety due to [Nicolos’s] threats.”
An Alaska Superior Court judge said Nicolos approached his boss because he was seeking help and was not actually threatening violence. Nevertheless, the court said Nicolos violated personnel rules that require staff to work “effectively, amenably and courteously.” The court said Nicolos was not prejudiced by his employer’s failure to conduct an adequate investigation.
Nicolos was urged by his boss to get counseling, and went to Providence Alaska Medical Center. Afterward, Nicolos’ counselor contacted Nicolos’ boss to warn about his alleged “homicidal ideation.” Nicolos’ boss said the counselor told her that Nicolos said “he had a list of people that he wanted to hurt either with guns or weapons” and that his boss “was number one on his list.”
Nicolos’ psychologist said Nicolos was not a threat then and does not pose a threat to anyone today.
Bloomberg law recently surveyed how federal judges in U.S. District Court for the Eastern District of Wisconsin rule on employment discrimination cases.
The survey indicates the four judges dismiss most employment discrimination cases long before they ever reach a jury pursuant to employer motions to dismiss or for summary judgment.
According to Bloomberg:
- Employment lawsuits are dismissed by Eastern District of Wisconsin judges shortly after they are filed 40.5 percent of the time. Only six in 10 employment cases proceed to an exchange of evidence and pre-trial motions. In a motion to dismiss, the employer argues the lawsuit is baseless.
- The judges threw out 54.5 percent of the surviving employment lawsuits pursuant to a motion for summary judgment on the eve of trial, after evidence was exchanged by the parties, This type of motion argues there is no material fact in dispute and the plaintiff has no chance of winning a trial. The judge effectively decides the case, foreclosing plaintiffs from examining witnesses or presenting evidence before a jury.
Why are employment discrimination lawsuits dismissed at a higher rate?
Continue reading “Federal Judges: Employer Friendly or Worker Hostile?”
The EEOC has defended the fact that it does not require EEOC judges to follow any code of judicial ethics.
In response to an ethics complaint, EEOC Associate Legal Counsel Carol R. Miaskoff ruled last month that EEOC judges are mere attorneys and not judges at all. “Because judicial standards do not apply, they could not have violated these rules,” states Miaskoff.
EEOC spokesperson Christine S. Nazer said Friday the “EEOC leadership feels its judges should be fair, impartial, and follow the law, and all evidence suggests that this is exactly what happens in our federal sector decision-making process.”
Nazer said Acting EEOC Commissioner Victoria Lipnic declined to answer questions, such as the following:
- Is Miaskoff is correct? Her ruling appears to be contrary to the ABA Model Code of Judicial Conduct for Federal Administrative Law Judges and the American Bar Association’s Model Code of Judicial Conduct.
- What about the evidence showing that EEOC judges are not fair or impartial and do not follow the law in cases involving age discrimination in hiring brought against federal employers.
Continue reading “EEOC “Leadership” Says No Need for Code of Judicial Ethics”
The EEOC claims its judges are not required to follow any code of judicial ethics, which is the equivalent of saying that EEOC judges don’t have to be fair and impartial or to even follow the law.
What is the EEOC afraid of?
There is evidence that EEOC judges treat complaints involving the Age Discrimination in Employment Act of 1967 dismissively when compared to complaints filed under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. However, the substantive prohibition against discrimination is the same in both the ADEA and Title VII. Both laws make it illegal “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” because of that individual’s protected status.
Yet, the EEOC does not treat both laws the same. Last year, EEOC Administrative Judge Daniel Leach and Carlton M. Hadden, the director of the EEOC’s Office of Federal Operations, ruled in two age discrimination cases that federal employers can ignore objective qualifications and base hiring decisions on subjective factors like poise and cultural fit. Continue reading “JUDICIAL ETHICS: WHAT IS THE EEOC AFRAID OF?”
An official from the EEOC’s Office of Legal Counsel has ruled that EEOC judges are not subject to any code of judicial ethics because they are merely attorneys working in the executive branch.
EEOC Associate Legal Counsel Carol R. Miaskoff writes in a June 25 letter that EEOC attorneys who are designated to serve in a judicial capacity and who are called ” judges” are not required to follow the Code of Conduct for United States Judges or the American Bar Association’s Model Code of Judicial Conduct.
“Because judicial standards do not apply, they could not have violated these rules,” states Miaskoff.
EEOC ‘judges’ can violate basic judicial ethical standards with impunity.
Miaskoff’s letter was in response to an ethics complaint filed by a woman who, at the age of 60, filed a complaint of age discrimination against the Social Security Administration in 2011. She argued that EEOC “Administrative Judge” Daniel Leach, and Carlton M. Hadden, the director of the EEOC Office of Federal Operations, blatantly violated widely accepted judicial ethics in deciding her case. Continue reading “EEOC ‘Judges’ Are Not Subject to Any Code of Judicial Ethics”
There has been much discussion lately about the role of Republican President Donald Trump in the incivility that hovers like a dark cloud over our country.
However, a recent nationwide poll shows that incivility was a problem long before Trump announced his candidacy in 2015, though he certainly hasn’t helped the problem.
Weber Shandwick and Powell Tate, in partnership with KRC Research, began its annual Civility in America poll in 2010, five years before Trump’s entry into national politics. That year, 65 percent of Americans thought incivility was a “major problem.” The most recent poll in December 2016 found that 69 percent of Americans felt that incivility is a major problem.
It would seem that something more systemic and entrenched in American society is responsible for the increasingly sad state of life in America. My guess is that incivility has its roots in the corruption that led to the collapse of Wall Street and the worst depression in 100 years. The government stood by and then failed to prosecute financiers who looted middle class pensions and savings. The situation today is not much better. Our economy is increasingly dominated by predatory monopolies and tax averse multi-national corporations. The entire U.S. news media is owned by 15 billionaires who benefit from the status quo. Meanwhile, the opioid epidemic killed an estimated 64,000 Americans in 2016.
There are distressing signs that incivility is crossing the line into low-level violence.
Continue reading “Incivility: Is it Trump’s Fault?”
An assault on the concept of “diversity” in college admissions is underway, this time by Asian Americans and older Americans.
A group called Students for Fair Admissions (SFFA) recently filed a brief in U.S. District Court of Massachusetts seeking immediate judgment in its favor in its 2014 lawsuit against Harvard University. The group is equating discrimination against Asian Americans with discrimination against Jews in the 1930s. The SFFA’s mission is to eliminate race and ethnicity as factors that either harm or help that student to gain admission to a competitive university.
Meanwhile, older adults claim elite universities are violating the Age Discrimination in Employment Act by denying them admission to graduate study programs solely because of their age.
The SFFA alleges Harvard discriminates against Asian American applicants in violation of Title VII of the Civil Rights Act of 1964 . The group claims that applicants of Asian descent are eliminated in a subjective review where they are deemed to have “less attractive ‘personal qualities” than whites, African-Americans and Hispanics.
Moreover, the SFFA claims that Harvard engages in “racial balancing” to achieve diversity in violation of the Equal Protection Clause of the Fourteenth Amendment. The SFFA contends that Harvard has never seriously considered “race neutral” alternatives in admissions and simply ignores federal court rulings that permit racial preferences only if they are narrowly tailored to enroll a “critical mass of unrepresented minority students” to realize the benefits of a diverse student body. The SFFA claims Harvard uses race as a “predominant factor” in admissions, particularly with respect to African-American and Hispanic applicants.
Can universities make subjective distinctions that disproportionately discriminate against Asian American and older applicants?
Continue reading “Asian-Americans, Older Americans Seek Non-Discriminatory College Admissions”
A study committee of the National Academies of Sciences, Engineering & Medicine is urging sate legislatures and Congress to pass new laws to better protect targets of sexual harassment from retaliation.
In a recently released report, the Committee on the Impacts of Sexual Harassment in Academia states that current laws, policies and procedures don’t work because targets of sexual harassment fear retaliation if they report the perpetrator. The group stresses a change in culture and climate is necessary to halt sexual harassment in academia.
The committee, which began its work in 2016 prior to the #metoo movement, estimates that more than 50 percent of women faculty and staff and from 20 to 50 percent of women students “encounter and experience” sexually harassing conduct in academia.
The committee includes scientists, engineers, physicians and experts in sexual harassment research, legal studies and psychology.
Judicial decisions encourage employers to achieve legal compliance and avoid liability, not to prevent sexual harassment.
Continue reading “Science Group Asks Congress to Change Sexual Harassment Laws”
A working group conceded this week that the federal judiciary’s policies for addressing complaints of sexual harassment and workplace abuse are inadequate.
However, the Federal Judiciary Workplace Conduct Working Group issued a report that makes a troubling recommendation and fails to address what to do about federal judges with lifetime tenure who engage in sexual harassment and bullying.
The group suggests the 30,000 employees of the U.S. judiciary would be more likely to complain about abuse and harassment if “less formal mechanisms” were established to file complaints. This less formal option would provide complainants with “guidance, counseling, assistance and relief.” The group suggests it be “calibrated to the nature of the conduct” and “should exist at the local, regional and national levels.”
The informal option is troublesome because it is not transparent and contributes to a lack of accountability that is particularly imperative in a male-dominated workplace to halt serial sexual harassment and workplace abuse.
The working group was formed by the Administrative Office of the U.S. Courts at the request of Chief Justice John G. Roberts, Jr. and consists of federal judges and senior Judiciary officials. Notably absent on the panel are current or former law clerks, low-level workers who are most vulnerable to abuse and representatives from the public.
In 2017, a total of 66% of active U.S. District Court judges were male.
Continue reading “Informal Option Proposed to Address Sexual Harassment in U.S. Judiciary”