Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases

Abstract

In this Article, we present an exploratory empirical study of federal workplace racial harassment cases that span a twenty-year period. Multiple analyses found that judges' race significantly affects outcomes in workplace racial harassment cases. African American judges rule' differently than white judges, even when one takes into account their political affiliation or certain characteristics of the case. Our findings further suggest that judges of all races are attentive to the relevant facts of the cases but may reach different conclusions depending on their races. When race, political affiliation, and certain case characteristics are all considered simultaneously, the role that race plays loses some statistical significance (as one might expect given the increasing number of variables). While we cannot predict how an individual judge might act, our empirical analysis suggests that African American judges as a group and white judges as a group perceive racial harassment differently. These findings counter the traditional myth that the race of a judge would not make a difference — a myth premised on a presumption of a formalistic and objective decision-making process. Given the underrepresentation of minority judges, the growing minority population in the U.S., and minority skepticism of judicial fairness, this Article offers empirical support for a more racially diverse judiciary. An increase in the number of judges of color promises to increase diverse perspectives in the judicial system and to help unveil the complex reality of racial dynamics in the workplace. Our experiences instantly become part of the lens through which we view our entire past, present, and future, and like any lens, they shape and distort what we see.

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