Third Generation Discrimination: An Empirical Analysis of Judicial Decision Making in Gender Discrimination Litigation

Abstract

In this progressive era of #MeToo and other movements which highlight the reality of women’s experiences in the workplace and other settings, the question arises as to why discrimination-based civil lawsuits are not more successful for female litigants. The courts have served as an important tool in reforming discriminatory workplace cultures by directly addressing and punishing overtly discriminatory workplace behavior such as blatant pregnancy and gender discrimination or grievous acts of sexual harassment. But the same courts have not been able to function as a safe haven for women who have their careers curtailed by implicit bias-based gender discrimination brought under Title VII. Gender discrimination lawsuits brought under a theory of bias-based discrimination, more specifically bias-based gender discrimination, have not offered reliable remedies for female litigants and have not impacted workplace culture in any meaningful way.

Bias-based gender discrimination theory involves structural discrimination – facially neutral workplace policies that are applied to favor the male dominant group and consequently written and managed by a male-dominated upper hierarchy. Successful litigants in bias-based gender discrimination cases must convince the judicial decision-maker not only that the law of Title VII applies, not only that the facts at issue constitute discrimination, but also that the workplace is mired in multi-layer structural discrimination flowing from an implicit bias against female employees. In order for the federal courts to function fully as interpreters of Title VII, policing our workplaces for equity and inclusion, the judicial gatekeepers must engage their own biases and preconceptions when evaluating the subject workplace.

This article follows an earlier piece which theorized there is an additional layer of implicit bias-based discrimination which inhibits the success of plaintiffs in Title VII lawsuits. That article argued that lawsuits seeking relief under facts of implicit bias-based workplace discrimination are further inhibited by bias in the courts, specifically the implicit biases of the federal judges who monitor the progress of the plaintiff’s case. This additional layer of implicit bias-based discrimination, Third Generation Discrimination, theorizes that a federal judge may be influenced by his or her own traits when evaluating gender discrimination cases which involve bias-based theories of gender discrimination.

This article is based on the authors’ study of Title VII cases in federal district courts over a ten-year period. The authors studied the judicial rulings on dispositive motions in Title VII cases and compared those outcomes to demographic information for the deciding judge, including race, gender, age and political affiliation. Part II of the article summarizes the theories of Second and Third Generation Discrimination, creating a framework for the research to follow. Part III of the article describes and explains the relevant research by outlining the parameters of the sample, explaining the statistical method followed, and discussing the research results. Part IV of the article analyzes the results of the authors’ research and theorizes how the authors’ findings can inform future discussions of gender discrimination.