Female Judges Matter (at least in Title VII cases)

by Angela N. Johnson

Jennifer Peresie examines whether and how the presence of female judges on three-judge federal appellate panels affect collegial decision-making in a subset of gender-coded cases – those involving claimants alleging sexual harassment or sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Peresie concludes that even though plaintiffs lost in the vast majority of sexual harassment or sex discrimination cases, they were twice as likely to prevail when a female judge was on the bench.  Further, a female judge’s colleagues on the panel had a lower than usual dissent rate at just 6%.  (However, Peresie does not include an average dissent rate of non-mixed-gendered panels).  This indicates that the presence of a female judge affects the decision-making of her male colleagues.  Therefore, gender does matter when it comes to judicial decision-making (at least with gender-related cases). Just how much does being female increase the probability that a plaintiff will prevail?  In sexual harassment cases, having a female on the panel increased the likelihood it would find in favor of the plaintiff by 86% (from 22% to 41%) (Peresie 1776).  In sex discrimination cases, the likelihood increased to 65% (from 17% to 28%) (Peresie 1776).

Peresie dedicates the first portion of her article to past findings on this topic and the reasons for previous conflicting determinations.  For one, past studies have been restricted to the small sample size afforded to researchers (since in the past, there were so few female judges to draw from).  Second, female judges of the past may have been affected by pressuring male colleagues regardless of their own personal preferences.  Most importantly, past studies did not account for ideology and other background variables such as past careers or experience which may influence the decision making of both male and female judges.  It is possible that male judges who have been exposed to or are particularly compassionate toward sexual discrimination or harassment may automatically share the same view as that of their female colleague. In this study, Peresie accounts for these factors not taken into consideration in past studies. This is done by “limiting the time frame with no significant changes in Supreme Court precedent or federal statutes, to increase the homogeneity of the cases in the sample; by including variables representing a judge’s past careers, age, and federal appellate experience; and by coding separate variables to represent the ideology of each panel colleague” (Peresie 1766).  Peresie targeted all sexual harassment and sex discrimination cases decided by the federal courts of appeals between 1999 and 2001 where the plaintiff’s cause of action fell under Title VII of the Civil Rights Act of 1964.  In all, 556 total cases were studied which resulted in 1666 decisions (ie. votes by each individual judge) being analyzed. 

As I began reading the study, I began to draw upon previous knowledge that there are more women judges who were appointed by Democrat presidents than Republican.  Moreover, “Research shows that Democratic appointees are significantly more likely than Republican appointees to support sexual harassment and sex discrimination plaintiffs” (Peresie 1771).  I grew concerned that it could be difficult to discern whether gender was the impact on the 3-judge panels or if it was party affiliation.  However, party affiliation, though relevant, can be accounted for – “Judges appointed by Democratic presidents found for plaintiffs more often than did Republican appointees.  Additionally, Republican-appointed females supported plaintiffs at about the same rate as Democrat-appointed males – 29% and 30% respectively” (Peresie 1769).  The fact that Republican-appointed female judges are more likely than Republican-appointed male judges to vote pro-plaintiff is the key in demonstrating that gender, not just party affiliation, play a part in decision-making. Further, “adding a female judge to the panel more than doubled the probability that a male judge ruled for the plaintiff in sexual harassment cases (increasing the probability from 16% to 35%) and nearly tripled this probability in sex discrimination cases (increasing it from 11% to 30%).  Further, conservative male judges were affected as much as liberal male judges were by the presence of a female judge.  The presence of a female judge trumped an individual male judge’s ideology: The data indicates that serving with a female judge had more than 1.5 times the effect on a male judge of being appointed by a Democratic president” (Peresie 1778). Interestingly, “only the presence of the first woman on the panel mattered in determining the probability that a male judge ruled for the plaintiff” (Peresie 1782).  In other words, unlike the impact two Democratic-appointed judges have on a Republican-appointed judge (in past studies mentioned by Peresie) having a second female judge on a three-judge panel did not significantly impact the likelihood of rendering a pro-plaintiff decision.  However, I question here, whether there are enough three-judge panels which include two female judges. Perhaps the inadequate available sample is affecting this conclusion. I did not find in Peresie’s notes how many panels of this type were studied.

Why might having a woman on the panel affect her male colleagues’ decision making?  Peresie offers four possible explanations.  The first is deliberation.  According to Peresie, this is a natural affect stemming from the normal give-and-take of judges with different preferences seeking to influence case outcomes (this is common practice in any case, regardless of the nature of the case or gender of the judges). The other three: deference (male judges deferring to female judges seeking their input in gender-related cases based on their viewpoints, past experiences, or gender alone), logrolling (male judges potentially bargain with female judges for future gains (though frowned upon, Forrest Maltzman’s article, “Crafting Law on the Supreme Court: The Collegial Game” found evidence that Supreme Court Justices “adopt tit-for-tat strategies with one another”)), and moderation (a male judge silencing themselves out of respect for their female colleagues or fear that they will appear biased if they oppose the plaintiff’s claims).  The last three explanations all deal with the presence of a female judge which changes the character of that deliberation, making her preferences carry greater weight in negotiating and the give-and-take of decision-rendering.

Long-term benefits are also achieved but only in sexual harassment cases; when male judges previously rendered a pro-plaintiff decision in sexual harassment cases and a woman was on the panel, there was a 33% increase in the predicted probability of rendering a pro-plaintiff decision in future cases of the same type (Peresie 1784). According to Peresie, “If the number of panels with at least one female judge doubled, then approximately eight more Title VII sexual harassment and sex discrimination cases out of every hundred would be decided for plaintiffs” (Peresie 1787).  Since President Carter began appointing women judges to the federal appellate bench, and recent presidents have followed suit, it can be inferred a greater percentage of plaintiffs will prevail in these cases in the future.

Source Citation: Peresie, Jennifer L. “Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts.” The Yale Law Journal 114.7 (2005): 1759-1790.

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