Top Labor Economist Journal Publishes Article Finding Judicial Bias in Sex Discrimination Cases
The most prestigious labor economics journal, the Journal of Labor Economics (published by the University of Chicago), recently published an article, entitled “When Shadow Is the Substance: Judge Gender and the Outcomes of Workplace Sex Discrimination Cases” (Author Matthew Knepper). Conducting a random assignment of federal district court judges to civil cases, the study found that female plaintiffs filing workplace sex discrimination claims were substantially more likely to settle and win compensation whenever a female judge was assigned to the case. In addition, “female judges were 15 percentage points less likely than male judges to grant motions filed by defendants, which suggests that final negotiations are shaped by the emergence of the bias.” As one of my fellow NELA members said, it is nice to have a prominent labor economist prove what we (speaking on behalf of the plaintiff’s employment bar) already knew.
The article departed from prior studies that had only looked at trial victory rates and had found no distinguishable differences in the outcomes between male and female judges. Of course, trials are generally determined by juries, not judges. The more substantive impact of judges usually comes prior to trial, such as in pre-trial motions for summary judgment. So, instead of looking at trial victory rates, Knepper’s study focused on outcomes prior to trial and that is where he found substantial differences between outcomes based on whether the judge was male or female.
Further to this point, Knepper states, the study of trial victory rates “ignores a key insight, which is that a case will proceed to litigation only when the plaintiff and defendant disagree sufficiently over what the trial outcome would be.” The study of trial victory rates also only examines a small number of cases, since fewer than 5% of cases filed ever actually reach trial. Accordingly, taking a far greater sample of cases and more accurate view of success, Knepper’s study examined the other 95% of cases.
One of the study’s most interesting points concerns the analysis of bias. Much of the literature examining bias in various settings identifies what is sometimes referred to as “implicit” bias. Such biases tend to be observed when individuals make “fast or even split-second decisions,” such as when hiring managers make a decision based on an interview or when a police officer conducts a search or arrest. Unlike these environments, litigation usually provides judges with “considerable time to evaluate evidence and make deliberations.” This would make one think that implicit bias may have less of an impact. However, as Knepper summarizes, his findings suggest that bias is still present, even when decisions are made after careful consideration and substantial time.
For the full article, please see: https://www.journals.uchicago.edu/doi/abs/10.1086/696150.