Third Generation Discrimination Part II: An Empirical Analysis of Judicial Decision Making

Posted: 4 Aug 2018

Date Written: July 16, 2018


This research explores whether a judge’s gender, age, and tenure on the federal bench impacts a judge’s rulings on dispositive motions in Title VII gender discrimination claims. The empirical research project flows from the author’s earlier work on bias-based gender discrimination discussed in the article Third Generation Discrimination: The Ripple Effects of Gender Bias in the Workplace, 51 Akron L. Rev. 55 (2017) which expanded the previously recognized theory of Second Generation Discrimination to include a further layer of disruptive gender bias in the judiciary and jury. Both projects flow from a study of sociological data and analysis noting the role of implicit bias in decision-making and particularly the role of implicit gender bias in the evaluation of legal claims under Title VII. Third Generation Discrimination put forth the theory that a cycle of implicit gender bias in judicial decision making has created a next-level layer of discriminatory treatment in Title VII gender discrimination claims. The current research attempts to test the Third Generation Discrimination theory by evaluating a sample of Title VII gender discrimination claims heard in the federal courts for a 10 year period. The sample of cases is derived from a comprehensive research pool which included federal district and circuit court cases from January 2010 through April 2018. The research focuses on claims filed under Title VII based on allegations of gender discrimination in the workplace. The sample of cases studied narrows the full research pool to focus on cases wherein the Judge made or reviewed de novo a dispositive ruling, such as a ruling on a motion for Summary Judgment, and included a written opinion addressing the strengths and weaknesses of the Title VII gender discrimination claim. The sample includes cases premised on allegations of overt discrimination, sexual harassment, and implicit bias-based discrimination and includes cases wherein the federal Title VII claims are joined with other state and federal claims of discrimination. Cases included in the sample are noted as either favoring the plaintiff or defendant(s) and are also assigned an overall quality rating which indicates the strength of the case when evaluated pursuant to the underlying substantive law. Data is also gathered on the age, gender, Presidential appointment, and judicial tenure of the Judge making the dispositive ruling in each case included in the sample. The completed research project will assess relationships between the relevant data on the presiding judge and both the quality rating and outcome of the case. The analysis of this data will allow for the testing of the theory that judicial demographics impact decisions when the allegations in the case require an assessment of workplace climate and culture, possibly leading to important information regarding which judicial traits may affect the overarching success of Title VII gender discrimination lawsuits.

Suggested Citation

Dunham, Catherine Ross, Third Generation Discrimination Part II: An Empirical Analysis of Judicial Decision Making (July 16, 2018). Available at SSRN:

Catherine Ross Dunham (Contact Author)

Elon University School of Law ( email )

201 N. Greene Street
Greensboro, NC 27401
United States

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