Should Male Judges Be Precluded From Presiding Over Sexual Harassment Cases?

It is obvious to me that a judge’s gender shapes court decisions. It is equally apparent to me that most judges in state and federal court are overwhelmingly male. This is one reason it is so hard for victims of sexual harassment to get justice. Indeed, research shows that a judge's gender plays a significant role in the outcome of sexual harassment cases. A Yale Law Journal article analyzed more than 500 sexual harassment case appeals in 1999, 2000, and 2001 and concluded that plaintiffs were twice as likely to win their appeal when a female judge was on the bench.

Sexual Harassment Laws

Sexual harassment is illegal in all workplaces and in every state. It's a form of gender discrimination prohibited by the Civil Rights Act of 1964, and it's illegal whether the alleged perpetrator is a person's co-worker or supervisor.

Over the past 40 years, however, judges across the country (who are mostly men) have developed an extremely narrow interpretation of what sexual harassment is under the law, and which behaviors create a hostile work environment. This means when a case goes to court the odds are stacked against victims of discrimination more than victims of medical malpractice or consumer fraud, for example.

Forms of Sexual Harassment

The high courts have defined two forms of sexual harassment that are illegal at work. In both, the behavior must be unwelcome to be against the law.

The first is called quid pro quo harassment. In these scenarios, a person in a position of power demands that a subordinate tolerate harassment (like groping and sexual requests) to keep his or her job, or to get a salary raise or other job benefits. These are the most obvious cases and the easiest to prove. It only has to happen once to be illegal.

The second form of illegal harassment is more subjective. It's behavior that is "severe or pervasive" enough to create a hostile work environment for the victim. This is open to interpretation, because there is no definition as to what makes harassment (like groping and sexual requests) severe or pervasive enough to create a hostile work environment. Instead, juries and judges are supposed to consider how often the behavior happened, whether it was physical or verbal, whether the perpetrator was a supervisor, whether more than one person participated, and whether a reasonable person would view the behavior as offensive.

The second type of case is the one that judges are most likely to dismiss, because they might not think someone's actions are all that bad. And when one judge decides that a co-worker's repeated requests for sex don't count as sexual harassment, and if that dismissal is upheld by an appeals court, it creates a legal rationale for other judges to dismiss similar cases.

This is how judges create a high bar for what the courts consider harassment that is "severe and pervasive" enough to create a hostile work environment. If they don't believe that someone’s allegation rises to the level of severity, then they can dismiss a case before it goes to trial. This is entirely subjective depending on the judge. There are few male judges that exhibit any real understanding of the real dynamics of the workplace when it comes to male and female power imbalances which many times is at the root of sexual harassment.

Views of Sexual Harassment by Men vs Women

Men tend to have a narrower view of sexual harassment, in general, than women. Researchers at the University of Minnesota analyzed 62 studies of how women and men view sexual harassment, and found that women were far more likely to consider a broader range of actions as sexual harassment. Women considered groping and repeated requests for dates to fit the label; men were less likely to think so.

Women were also much more likely to consider dating pressure and physical sexual contact as behavior that creates a hostile work environment. This distinction is important. For a plaintiff to prove they were subjected to illegal harassment, they have to persuade a jury that it created a hostile work environment for them (this is not necessary in the more straightforward quid pro quo harassment cases). So it makes sense that a male judge would be more likely to dismiss a case for not meeting that standard than a female judge.

Important Role of Female Judges

Federal judges, who are appointed by the president, are overwhelmingly white, male, and from privileged backgrounds. Even in state court, judges in New Jersey at least, are appointed by the Governor, and they too are overwhelmingly white, male, and from privileged backgrounds. On the other hand, juries represent a wider range of American society.

Because of these differences, it is possible for a jury to believe the discrimination did occur, while a male judge may think that discrimination may not have occurred. These differences make it even more important for these disputed cases to be left to juries. My opinion is that the justice system has failed to give sexual harassment victims their day in court. As recent media accounts have demonstrated, sexual harassment continues to exist and disrupt the workplace and those it has victimized.

It is for this reason that more female judges must be appointed to the bench. For every male judge appointed, there must be a female judge appointed to the bench. In the meantime, male judges should be made to attend specially crafted training sessions with an emphasis on not judging women’s experiences against prevailing legal tests and to stop behaving as if experiences that don’t meet them don’t count.

“Thirty years after the U.S. Supreme Court held … that workplace harassment

was an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of

1964, we conclude that we have come a far way… but sadly and too often still have far to go” (EEOC, 2016). I agree. Nonetheless, I and our New Jersey employment law team at Burnham Douglass are committed to fighting gender discrimination in the workplace because the battle is worth it to ensure that subsequent generations of women may travel their own paths without the burdens of gender discrimination.