Constructions within a field

Research on constructions within an individual field tend to focus on employer organizations. In Inventing Equal Opportunity, Frank Dobbin traced how employer organizations, grappled with the ambiguous new federal mandate that prohibited employment discrimination and over time arrived at what he described as “a legal code internal to the corporation” This code consisted of equal opportunity rules that existed only within the human resource manual. These policies and programs, while not present in any federal or state statute, began to define what equal employment and anti-discrimination policy was. For example, concepts such as objective performance evaluations, publication of jobs beyond the existing workforce, diversity training, and official grievance protocols were constructed by personnel experts and not judges or legislators (Reference DobbinDobbin, 2009). Lauren Edelman similarly traced how employers created largely symbolic rules and offices that created symbols of compliance, without creating any substantive changes (Reference EdelmanEdelman, 1992, Reference Edelman2016; Reference Edelman and CabreraEdelman & Cabrera, 2020).

Constructions at overlapping fields

Edelman's work however also highlights the fact that individual fields rarely construct meaning without any substantive input from overlapping fields. In the case of Edelman's work she highlights how the judiciary increasingly deferred to the employer constructed meanings, eventually giving them greater weight, which resulted in greater proliferation of these symbolic compliance measures by employer (Reference Edelman, Krieger, Eliason, Albiston and MellemaEdelman et al., 2011). This interaction, known as the endogeneity of law, examines how employers, the group intended to be regulated by EEO law, have shaped the judiciary's opinions on how that law is to be applied. (Reference Bisom-RappBisom-Rapp, 1999; Reference DobbinDobbin, 2009; Reference Edelman, Nielsen and NelsonEdelman, 2005; Reference Edelman, Uggen and ErlangerEdelman et al., 1999; Reference Edelman, Krieger, Eliason, Albiston and MellemaEdelman et al., 2011; Reference Nelson, Berrey and NielsenNelson et al., 2008; Reference Suchman and EdelmanSuchman & Edelman, 1996). This intersection is not one way however, as the judiciary has been successful in reducing discriminatory business practices via findings of employer liability (Reference Burstein and EdwardsBurstein & Edwards, 1994; Reference Donohue and HeckmanDonohue III & Heckman, 1991; Reference HirshHirsh, 2009; Reference SkaggsSkaggs, 2008, Reference Skaggs2009). A growing body of research however has started to address how politics and public attitudes shape employer and employee conceptions of discrimination by signaling what behavior is deemed discriminatory (Reference BeggsBeggs, 1995; Reference EdelmanEdelman, 1990; Reference GarnettGarnett, 2012; Reference SkaggsSkaggs, 2008, Reference Skaggs2009; Reference Stainback and Tomaskovic-DeveyStainback & Tomaskovic-Devey, 2012). Tomaskovic-Devey and Stainback detailed in their book Documenting Desegregation how national political attitudes and leadership shaped how and by how much workplace segregation changed over time following the passage of the Civil Rights Act (Reference Stainback and Tomaskovic-DeveyStainback & Tomaskovic-Devey, 2012).For example, as national politics moved towards neo-liberalism, de-segregation stalled, and as Reagan administration policies moved away from racial equality and towards gender equality, woman achieved greater gains in desegregation than Black Americans (Reference Stainback and Tomaskovic-DeveyStainback & Tomaskovic-Devey, 2012). Related research looking at local attitudes found that workplace desegregation regulation has a more significant impact in politically liberal jurisdictions (Reference Guthrie and RothGuthrie & Roth, 1999; Reference Kalev and DobbinKalev & Dobbin, 2006; Reference SkaggsSkaggs, 2008, Reference Skaggs2009). Employers in more egalitarian minded communities and with more same-sex couples, tend to have less inequality (Reference BeggsBeggs, 1995; Reference GarnettGarnett, 2012; Reference SkaggsSkaggs, 2008). Greater levels of voting for Democrats is correlated with lower rates of occupational segregation by race and gender (Reference May and McGarveyMay & McGarvey, 2017; Reference McVeigh and SobolewskiMcVeigh & Sobolewski, 2007).

Individual constructions of discrimination

Finally, previous research has demonstrated the variety of ways in which individuals construct their understanding of discrimination and the factors that influence these definitions. Personal attributes such as one's age, income, and education influence perceptions of unfair treatment (Reference Bobo, Suh, Bobo, Oliver, Johnson and ValenzuelaBobo & Suh, 2000). Black Americans, Latinos, and women are more likely to perceive discrimination at work (Reference Hirsh and LyonsHirsh & Lyons, 2010; Reference Mccord, Joseph and DhananiMccord et al., 2017).

Social context can also shape individual employees' perception of discrimination. Research shows that differences in personal, community, and organizational characteristics influence whether an employee constructs various behaviors as illegal discrimination (Reference Avery, McKay and WilsonAvery et al., 2008; Reference MarshallMarshall, 2005; Reference Stainback, Ratliff and RoscignoStainback et al., 2011). Employees are more likely to identify workplace discrimination when they perceive societal wide discrimination as higher, when local norms reject gender discrimination, and when the parties involved differ in race or gender. (Reference Avery, McKay and WilsonAvery et al., 2008; Reference EyerEyer, 2012; Reference Kartolo and KwantesKartolo & Kwantes, 2018; Reference Schaffer and RiordanSchaffer & Riordan, 2013; Reference Stefanie, Kinias, O'Brien, Major and BivolaruStefanie et al., 2013).

Organizational factors, such as levels of integration, formal diversity training and standardized employee screening procedures also impacts whether behavior is constructed as discriminatory (Reference Avery, McKay and WilsonAvery et al., 2008; Reference Hirsh and KmecHirsh & Kmec, 2009; Reference Hirsh and LyonsHirsh & Lyons, 2010; Reference Hirsh and SabinoHirsh & Sabino, 2008; Reference Stainback, Ratliff and RoscignoStainback et al., 2011). Finally, an employer's construction of their anti-discrimination policy can also shape employees' definition of discrimination (Reference MarshallMarshall, 2005). If lay-persons' perceptions of what constitutes discrimination is shaped by personal factors and local norms, why should not judges be subject to the same? Research in other realms already suggests that judges are not much different from lay-persons when it comes to the influence of background beliefs on decisionmaking (Reference Englich, Mussweiler and StrackEnglich et al., 2006; Reference Guthrie, Rachlinski and WistrichGuthrie et al., 2001; Reference MillerMiller, 2019).

In the next section, I focus on how both community level factors and the race and gender identity of judges contribute to the construction of discrimination. I then look at how local community and judicial identity interact to construct a person and place specific understanding of discrimination.

Local normative environments and legal decisionmaking

A theoretical framing related to the legal constructionist approach is the community court's perspective. This approach recognizes that courts are embedded in communities, which can impact how cases are handled within the courtroom. This article conceives of this perspective as an application of the overlap between the public and political opinion fields and the judiciary fields. Peter Nardulli, Roy Flemming, and James Eisenstein's decades long mixed methods study of trial courts in Illinois, Michigan, and Pennsylvania laid the foundation for showing how local norms and existing relationships shape the handling of legal disputes (Reference Flemming, Nardulli and EisensteinFlemming et al., 1987; Reference NardulliNardulli, 1986; Reference Nardulli, Eisenstein and FlemmingNardulli et al., 1980; Reference Nardulli, Flemming and EisensteinNardulli et al., 1984, Reference Nardulli, Flemming and Eisenstein1985). The majority of contemporary research on the Court Communities perspective has focused on criminal law, but the insights remain valuable within a discussion of employment discrimination. Research in the field of criminal justice suggests the likelihood of conviction, sentence length, and capital punishment, especially for Black defendants, varies by local factors such as region of the country and percent republican (Reference Baumer and MartinBaumer & Martin, 2013; Reference Feldmeyer and UlmerFeldmeyer & Ulmer, 2011; Reference Helms and JacobsHelms & Jacobs, 2002; Reference Jacobs and CarmichaelJacobs & Carmichael, 2004). Given that employment discrimination and criminal punishment are forms of social control of minority members (Reference BlalockBlalock, 1967; Reference Huffman and CohenHuffman & Cohen, 2004; Reference Johnson, Stewart, Pickett and GertzJohnson et al., 2011), it is little stretch to suspect that the same factors that increase criminal punishment would also cause lax enforcement of anti-discrimination laws.

The Court Communities perspective recognizes that local communities shape even the federal judiciary (Reference Feldmeyer and UlmerFeldmeyer & Ulmer, 2011; Reference Ulmer and JohnsonUlmer & Johnson, 2017). While they are appointed instead of being elected by citizens, there is still reason to suspect federal judges are influenced by the community in which they work. Federal judges typically work in a local court district for their entire career. Most judges were also born in the region they eventually serve (Reference Neubauer and FradellaNeubauer & Fradella, 2015; Reference Richardson and VinesRichardson & Vines, 1970). By law, they are required to live in the district in which they work (Judiciary and Judicial Procedures, 2012). Furthermore, federal judges join the bench following years of local politicking; therefore, judges already have strong social networks in their district (Reference Richardson and VinesRichardson & Vines, 1970). Senators within the circuit have an opportunity to provide recommendations to the White House on how to select (Reference RutkusRutkus, 2013). Senators from the state the nominee was selected from could also provide an opinion to the Senate on the fitness of the nominee (Reference RutkusRutkus, 2013). This process was one more opportunity for local influences to shape who makes it to the bench.

Legal decisions could be influenced by local context because, as evidenced by judicial politicking, the president will only nominate attorneys who already reflect the norms of the local district (Reference Richardson and VinesRichardson & Vines, 1970; Reference Songer and DavisSonger & Davis, 1990). Additionally, and perhaps more importantly, residing in a district while on the bench, could shape the normative criteria judge may activate in the court of decisionmaking (Reference Richardson and VinesRichardson & Vines, 1970). While federal judges have a job for life, and are allegedly immune to political pressures, there is evidence showing that local politics influences federal judges (Reference Baumer and MartinBaumer & Martin, 2013; Reference Richardson and VinesRichardson & Vines, 1970).

Prior research in criminal sentencing and employment discrimination research has identified three factors of social context that may be particularly likely to shape decisions in employment discrimination cases: local political orientation (Reference GarnettGarnett, 2012; Reference McVeigh and SobolewskiMcVeigh & Sobolewski, 2007; Reference SkaggsSkaggs, 2008, Reference Skaggs2009; Reference Songer and UnahSonger & Unah, 2006), rurality (Reference Dumas and HaynieDumas & Haynie, 2012; Reference Eason, Zucker and WildemanEason et al., 2017; Reference Oliver and MendelbergOliver & Mendelberg, 2000; Reference Songer and UnahSonger & Unah, 2006), and presence in the south (Reference GlaserGlaser, 1994; Reference Oliver and MendelbergOliver & Mendelberg, 2000; Reference Songer and DavisSonger & Davis, 1990). All three are relevant to shaping local norms related to discrimination, race, and gender. For examples, the traditional perspective is that the South has more discrimination; nonsoutherners are more likely to believe equality does not yet exist, and southern Whites tend to hold more negative views of Black Americans.

While in many cases, these three conditions, rurality, southerness, and Republican support exist in the same place, they still can be independent. For example, large cities in the south can be left leaning, while cities outside the south, especially prior to the 2016 election, could lean conservative. Rural communities in the south can likewise be majority Black American, and, thus, lean Democratic in voting. Examination of all three allows study of their independent effects, even if there is substantial overlap in some locations.

Additionally, even though there may be some overlap in the existence of racism and sexism, they do however remain different processes. A region or person need not be retrograde or liberal regarding one process simply because they are regarding the other. Therefore, some factors discussed below may apply to both race and sex discrimination cases, while others will only apply to a single one.

Judicial identities

A judge's attitudes can shape their construction and interpretation of the law (Reference Chew and KelleyChew & Kelley, 2008; Reference GeorgeGeorge, 2007; Reference Johnson, Stidham, Carp and ManningJohnson et al., 2008; Reference Sisk, Heise and MorrissSisk et al., 1998). The evidence is mixed as to whether a judge's race, gender, and politics are relevant to how s/he decides cases in general (Reference Ashenfelter, Eisenberg and SchwabAshenfelter et al., 1995; Reference JohnsonJohnson, 2014; Reference Johnson, Stidham, Carp and ManningJohnson et al., 2008; Reference Steffensmeier and BrittSteffensmeier & Britt, 2001) Instead, there are theoretical reasons to believe that a judge's identity might only matter for particular types of cases. For example, evidence suggests that a judge's race, gender, and political affiliation are important predictors of how a judge will rule in employment discrimination cases along with death penalty and criminal cases (Reference BoydBoyd, 2016; Reference Boyd, Epstein and MartinBoyd et al., 2010; Reference Chew and KelleyChew & Kelley, 2008; Reference Collins, Manning and CarpCollins et al., 2010; Reference Collins and MoyerCollins & Moyer, 2008; Reference JohnsonJohnson, 2014; Reference Steffensmeier and BrittSteffensmeier & Britt, 2001).

A simplistic account would argue that judges of different races or genders simply hold wildly divergent attitudes on almost all legal matters, which in turn results in reaching different opinions. However, for the most part, the research demonstrates that judges, regardless of race or gender, have been socialized into the judiciary and limited by organizational constraints such many matters of law show no significant difference between the decisions of judges of different races or genders (Reference BoydBoyd, 2016; Reference JohnsonJohnson, 2014; Reference MorinMorin, 2013; Reference Steffensmeier and BrittSteffensmeier & Britt, 2001). However, a more finely tuned account would turn to the different lived experiences of Black versus White and female versus male judges to suggest that such differences would lead them to be more or less sympathetic to or quicker to recognize discrimination (Reference BoydBoyd, 2016; Reference Boyd, Epstein and MartinBoyd et al., 2010; Reference Weinberg and NielsenWeinberg & Nielsen, 2012). A quote from Black American Federal Circuit Judge Harry Edwards supports this theory stating “Because of the long history of racial discrimination and segregation in American society, it is safe to assume that a disproportionate number of Blacks grow up with a heightened awareness of the problems that pertain to these areas of the law” (Reference EdwardsEdwards, 2002).

Research increasingly suggests that it is only in particular types of cases, which activate race or gender identity, that may demonstrate an effect based on judicial race (Reference BoydBoyd, 2016; Reference Boyd, Epstein and MartinBoyd et al., 2010; Reference Davis, Haire and SongerDavis et al., 1993; Reference Songer and Crews-MeyerSonger & Crews-Meyer, 2000; Reference Songer and LindquistSonger & Lindquist, 1996). Employment discrimination law is one field in which a judge's personal identity may directly relate to the case (Reference BoydBoyd, 2016; Reference Chew and KelleyChew & Kelley, 2008; Reference Davis, Haire and SongerDavis et al., 1993; Reference Weinberg and NielsenWeinberg & Nielsen, 2012). For example, Black and female judges may be more to have been personally discriminated against, especially in the subtle ways that have become more common. White or male judges meanwhile may be more likely to have been socialized to believe that discrimination is a thing of the past, and when it exists, it does so in open and obvious way.

This is not a one way effect, as White Americans, are themselves socialized in racially relevant ways, such as being less attuned to discrimination (Reference Priest, Walton, White, Kowal, Baker and ParadiesPriest et al., 2014). Surveys in fact indicate that White Americans are less likely to believe racial discrimination in the workplace remains a major concern (Reference Hertz, Kilpatrick, Dyck and CluveriusHertz et al., 2020). Meanwhile, men are less likely to report discrimination at work or believe that gender discrimination will hamper their career when compared to women (Reference Parker and FunkParker & Funk, 2017; Reference Sipe, Larson, Mckay and MossSipe et al., 2016). Men are also more likely than women to oppose workplace gender equity measures (Reference Scarborough, Lambouths and HolbrookScarborough et al., 2019). While judges do undergo an additional socialization process in law school and in their legal practice, research does suggest that judges still hold biases, often implicit ones (Reference Levinson, Bennett and HiokiLevinson et al., 2017; Reference MillerMiller, 2019; Reference Rachlinski, Johnson, Wistrich and GuthrieRachlinski et al., 2009).

Existing research suggests that while Black judges and female judges may view the world differently from their counterparts, this does not mean they will thus reach the same legal conclusions. Some research demonstrates that while female judges are more likely to rule in favor of plaintiffs alleging gender discrimination, Black judges may be more likely to rule in favor of plaintiffs alleging race or sex discrimination, suggesting Black judges may have a broader sympathy for plaintiffs, and not merely towards Black plaintiffs (Reference BoydBoyd, 2016; Reference Chew and KelleyChew & Kelley, 2008). Though not previously demonstrated, it is possible that female judges similarly show sympathy for all plaintiffs, and not just those alleging sex discrimination.

Several theories exist for why Black and female judges rule differently than their White and/or male counterparts. They may see themselves as group representatives, they may have greater empathy for plaintiffs and/or past personal experience with discrimination, or they may have different ideological/political views than White and male judges (Reference BoydBoyd, 2016; Reference Collins, Manning and CarpCollins et al., 2010; Reference EdwardsEdwards, 2002; Reference Farhang and WawroFarhang & Wawro, 2004; Reference Johnson, Stidham, Carp and ManningJohnson et al., 2008; Reference Weinberg and NielsenWeinberg & Nielsen, 2012, Reference Weinberg and Nielsen2017). I put forth two hypotheses regarding judicial identity.

The intersection of the personal and local context

A constructionist approach must go beyond merely looking at identities and instead consider how embeddedness in a community might interact with these identities. Unfortunately, to date, there is limited research studying how local community norms may impact judges differently depending on the judge's background. The research that exists does suggest that gender can mediate the effects of the southern variable (Reference Davis, Haire and SongerDavis et al., 1993). More generally, research supports the idea that lay people's perception of discrimination is affected by their race/gender and the local context (Reference Avery, McKay and WilsonAvery et al., 2008). Furthermore, evidence suggests that judge's biases may not radically differ from those of lay people (Reference MillerMiller, 2019).

It is plausible that judges of color in defendant friendly, south, Republican, or rural districts, may be more conservative than their White counterparts. First, judges of color may experience more normative pressure to demonstrate that they reflect community values. Second, for a Black attorney to be considered for a judgeship in these districts, they may have to be clearly friendly to local values (i.e., a judge selection effect). If this is, in fact, the case, more moderate or even progressive Black judges may be selected out of the process or, at the very least, experience more pressure to conform. There is evidence for a similar effect in the criminal sentencing literature as Black judges may sentence more harshly (Reference Steffensmeier and BrittSteffensmeier & Britt, 2001). Alternatively, the identity and experience of Black and female judges may be most salient in conservative areas, such that they would be even more plaintiff friendly than comparable judges outside those areas. This leads to two competing hypotheses.

Data

The primary data come from the EEOC Litigation Project (Reference Kim, Martin and SchlangerKim et al., 2013) which is composed of case and judge details from a random stratified sampling of employment discrimination lawsuits filed in federal courts between 1996 and 2006 by the Equal Employment Opportunity Commission (“EEOC”) (Reference BoydBoyd, 2016). The population consisted of all federal cases filed by the EEOC between fiscal years 1997 and 2006. The sample includes all class actions, cases concluded by court order, and cases with a set trial date, along with a random sample of the remaining cases (Reference Kim, Martin and SchlangerKim et al., 2013). I limit my cases analysis to cases alleging race or sex discrimination. In line with previous research, I exclude race claims brought by White plaintiffs and sex claims brought by males (Reference BoydBoyd, 2016). This result in six race cases dropped and 60 sex cases dropped. These claims can present questions of power dynamics that are incongruous with cases filed by women and people of color. This is particularly important in the context of this article, as the importance of social context largely relates to how traditionally, disadvantaged individuals are treated or viewed within particular communities. Including such cases could mute the effects of local community context. In fact, it could be that White plaintiffs alleging race discrimination perpetrated by Black Americans may be best received by courts located in communities exhibiting bias against Black Americans.

The value of these cases for my research emerges from the EEOC investigatory process that occurs before these cases ended up in court. The process screens out cases with no or limited merit to focus attention on strong cases to file. In a mere 3% of cases does the EEOC find merit and file a lawsuit on behalf of the employee (Reference Nielsen, Nelson, Lancaster and PedrianaNielsen et al., 2008). This eliminates the concern that a high volume of frivolous cases, which judges uniformly decide, could hide variations in decisionmaking (Reference BoydBoyd, 2016). Though limited in the sense of being not necessarily reflective of all cases filed each year at state of Federal levels, such data are important for my purposes owing to the fact that: (1) they provide significant detail on case proceedings and decisionmaking, and (2) offer necessary and important variations on my two outcomes of interest (i.e., decisionmaking on motions during the case proceedings, and final decisionmaking on the case itself).

In order to understand the construction of the locality data, the organization of the Federal courts has to be understood. Federal court districts, the lowest level of the system, are further divided into divisions via judicial order. These divisions are where the decisions I examine are made, and they are the smallest way to physically divide the federal court system. Therefore, examining cases at this level allows the normative environment to be measured in the finest way possible. Each of these divisions is made up of multiple counties. Therefore, after linking each of the over 3000 counties to their respective division, I then aggregate county level data up to the division. I used data from 2000 census to weight the counties appropriately during the aggregation (Census, 2013).

County population density data comes from The National Center for Health Statistics Urban–Rural Classification Scheme for Counties (Reference Ingram and SheilaIngram & Sheila, 2012). Political data consist of county presidential voting data for 1996, 2000, 2004, and 2008. Data for 1996 comes from Dave Liep's Atlas of US Presidential Elections (Reference LeipLeip, 2004). Data for 2000 is from David Lublin and D. Stephen Voss's “Federal Elections Project” (Reference Lublin and VossLublin & Voss, 2001). I obtained data for 2004 and 2008 from the US Geological Survey, Department of the Interior (National Atlas of the United States, 2004). I then combined each county's raw vote count for Democratic, Republican, and Independent candidates for 1996, 2000, 2004, and 2008, and determined the total average support for Republicans in that county.

Measurement

Two key dependent variables are the focus of my analyses. Both center on whether the plaintiff or defendant won, which is fundamentally connected to the question of what the definition of discrimination is. The first looks at judicial decisions on motions within each case. After reductions for incomplete data, the analysis is left with 584 race motions and 963 sex motions. A motion is a filing by the plaintiff or defendant that asks the judge to make a decision that can impact the case. They can address a variety of topics, such as requesting dismissal of the case, a verdict in favor of the plaintiff, instructions to a party to produce a piece of evidence, or permission to avoid providing that evidence. The majority of the motions included address if discrimination occurred or whether a particular piece of evidence is relevant to the question of whether discrimination occurred and needs to be produced. Therefore, these motions directly address the theoretical question of whether social context influences the construction of what constitutes discrimination. Many of these motions, known as motions for summary judgment ask the judge to answer the question: Even if you assume everything alleged is true, is it even illegal discrimination? If a defendant wins a motion for summary judgment, the entire case could be dismissed in the defendant's favor (Reference BoydBoyd, 2016). Therefore, if in a counterfactual scenario two judges made different rulings on the same motion for summary judgment, it follows that each judge has a different construction of discrimination.

The second dependent variable looks at the final case outcome (i.e., did the plaintiff or defendant win the case). With the exception of cases that were still ongoing at the time of data collection, every motion belongs to a case that concluded for or against the plaintiff. I coded this variable based on the winner of decision rendered, with those indicating a form of plaintiff victory, including monetary settlements of any size, and summary judgment for the plaintiff, coded as plaintiff wins, while others, including dismissals of the case and verdicts for the defendant, were coded as defendant wins. Any case lacking a final decision was excluded from this level of analysis. From the initial sample, there are 226 race cases and 375 sex cases. While initially included, jury verdicts were excluded, as they capture the effect social context has on parties other than the judge, which is deserving of its own separate article.

My core independent variables include the race and gender of the judge and three variables connected to location: population density, politics, and south v not south. All variables, except the political measure, are coded as dummy variables. Judicial race uses White as the reference group. Due to their still limited numbers in the federal judiciary, Latino, Native American, and Asian American judges were omitted from my analysis leaving the comparison as Black judges versus White Judges.Footnote ² Judge sex uses male as the reference category. Population density uses with nonrural as the reference category. The southern variable uses nonsouthern as the reference category. Following previous research, I define the south as the Confederacy, which includes Alabama, Georgia, Florida, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia, plus Kentucky, which is defined as Southern in various literatures (Reference GlaserGlaser, 1994; Reference Jacobs, Carmichael and KentJacobs et al., 2005; Reference King, Messner and BallerKing et al., 2009). Finally, the political variable is a mean-centered continuous measure of total percentage of Republican votes in presidential elections in the division between 1996 and 2008.

I also include in my analyses controls for whether the motion/case has a private attorney on it. There is evidence suggesting private attorneys have more success than EEOC attorneys (Reference SelmiSelmi, 1996). This variable also helps control for overall case quality as private attorneys evaluate the likelihood of case success before agreeing to take it (Reference Goodman-Delahunty, Granhag, Hartwig and LoftusGoodman-Delahunty et al., 2010). It also accounts for concerns about unequal access to private attorneys depending on location.

I control for the party of the president who appointed the judge, as voting patterns and political party are correlated (Reference Boyd, Epstein and MartinBoyd et al., 2010; Reference PinelloPinello, 1999; Reference Sisk, Heise and MorrissSisk et al., 1998; Reference Songer and DavisSonger & Davis, 1990). Additionally previous research demonstrates that some of the perceived effects of race and gender could be related to the judge's party, because judges of color and female judges are more likely to be Democrats (Reference Collins, Manning and CarpCollins et al., 2010; Reference Davis, Haire and SongerDavis et al., 1993). As a result of the need to control for the party of appointment, my analysis omits magistrate judges, who, unlike other federal judges, are not politically appointed.

I control for class actions, as cases with multiple plaintiffs are likely to be stronger cases and previous research demonstrates that class actions tend to be more successful (Reference Nielsen, Nelson, Lancaster and PedrianaNielsen et al., 2008; Reference Nielsen, Nelson and LancasterNielsen et al., 2010). Class action lawsuits are also more common in the south and so controlling for this helps to avoid conflating a class action effect with a southern effect.

I control for the circuit court environment, because similar judges under different circuits can be in very different institutional environments, due to controlling precedent, which can constrain their decisions. Controlling for this allows local effects to remain visible. This variable looks at whether the case occurred in the second or third circuit, or one of the remaining ten. This definition has been used in previous research, as the second and third circuit as seen as more plaintiff oriented in employment discrimination cases (Reference Guthrie and RothGuthrie & Roth, 1999; Reference HirshHirsh, 2009).Footnote ³ Omitting this variable could alter the findings of the local influences (Reference ScottScott, 2006)

When examining individual motions, I also include controls for whether the motion addresses a discovery issues as discovery motions are far more likely to be decided in the plaintiff's favor. Discovery motions address whether a particular piece of evidence is relevant to the question of whether discrimination occurred and needs to be produced. I also control for the number of motions filed in the case, as a greater number of motions may indicate a party is filing more motions that are frivolous. When examining my case level outcome, I also control for the percentage of motions in the case won by the plaintiff as winning motions along the way would seemingly play a role in winning cases.

Finally, I control for whether the case alleges only a single form of discrimination. This primarily controls for the intersectional and/or double disadvantage previous research suggests that Black women face when alleging discrimination (Reference Best, Edelman, Krieger and EliasonBest et al., 2011). Potentially such an effect could exist for other claimants alleging other multiple forms of discrimination, such as race and disability or gender and religion. As data on the race of plaintiffs only exists for those alleging race discrimination, there is unfortunately no way to control for this potential intersectionality when the plaintiff does not themselves allege multiple forms of discrimination.

Methods and descriptive data

A two-outcome logistic regression forms the backbone of my analysis. Logistic regression is common for analysis of legal decisions (Reference Best, Edelman, Krieger and EliasonBest et al., 2011; Reference BoydBoyd, 2016; Reference Steffensmeier and BrittSteffensmeier & Britt, 2001). In line with previous research, which examined race and sex discrimination claims separately, this article does the same. (Reference BoydBoyd, 2016; Reference SkaggsSkaggs, 2008, Reference Skaggs2009). Theoretically, both the regional and judicial identity effects may express themselves in different ways depending on the type of discrimination alleged (Reference BoydBoyd, 2016; Reference McVeigh and SobolewskiMcVeigh & Sobolewski, 2007; Reference Songer and DavisSonger & Davis, 1990; Reference Stainback and Tomaskovic-DeveyStainback & Tomaskovic-Devey, 2012). Given that individual judge can have their own dispositions and the same judge may have worked on multiple motions, clustered errors are used in all regression models of motion outcomes. As my analysis occurs at two levels, motions and final case outcomes, I report descriptives for both outcomes, separated between the race cases and sex cases. Table 1 contains the values at the motion level. Table 2 contains the values at the case level. Since some cases have multiple motions, the overall sample size changes depending on the outcome being examined. Additionally, because each case can have multiple judges, the judicial identity variables do not reflect individual judges, but are instead dummy variables for whether the majority of the judges handling the case were White, male, or Republican.

Table 1. Motion level descriptive statistics

Table 2. Case level descriptive statistics

There is little variation in my dependent and independent variables by case type. For example, plaintiffs win about 72% of the motions and around 86% of the cases, regardless of whether it is a race or sex discrimination case. This success rate does not reflect employment discrimination cases generally, but is a function of the EEOC case screening and selection process. There is, nevertheless, significant enough variation at the motion and case determination levels to pick up systematic differences and/or biases.

Cases are randomly assigned to judges, so we should not expect any substantial differences in judge race, sex, and party based on case type (Reference Abrams, Bertrand and MullainathanAbrams et al., 2012; Reference Ashenfelter, Eisenberg and SchwabAshenfelter et al., 1995). We do see that Black and female judges are slightly more likely to handle race cases than other types. We see that race cases are overrepresented in the south, while sex discrimination cases are overrepresented in in rural areas. The mean percentage-voting Republican is slightly lower in cases alleging race discrimination versus those alleging sex discrimination. Sex cases are also slightly more likely to have a private attorney on the case than race cases.

Approximately 17.5% of cases do not report the type of discrimination alleged. Therefore, these cases are excluded. In contrast to cases alleged discrimination based on something like age, these cases are excluded from the analysis without knowledge of whether they may in fact allege race or sex discrimination. As the presence of knowledge about the case type is critical to determining if the case is included, and in which category, this missing data about case type can be conceived as a selection effect problem, or a missing data problem. Therefore, two steps were taken to ensure that missing data or selection effects were not biasing the results. First, to account for potential missing data bias, separate probit models were created to determine the probability of being a race or sex case. This probability was then used to weight the logistic regression on motion and case outcomes. To account for potential selection effects, a Heckman correction was used. The Heckman correction is an identical two-step process, in which first, the probability for selection into the analysis is generated and then in the second step these probabilities are used to weight the regression. The difference between the two methods is that one generates predicted probabilities of being a race or sex case, while the other generates predicted probabilities of not missing data on the case type. The results provided are based on the baseline model without Heckman or missing data analysis, as all three models are largely consistent.

The influence of judicial attributes and social context in race discrimination claims

Table 3 contains three models, all at the motion level of analysis. The first includes judge characteristics and context indicators, along with the control variables. The second model adds an interaction between judge race and percentage of Republican voters in the division. The third model removes the judge race and percentage of Republican voters in the division interaction and replaces it with an interaction between the judge race and the case being in the south.

Table 3. Logistic regression models of effects of judicial and regional variables on race motions standard errors adjusted for 202 clustered judges

^a Reference category is White judges.

^b Reference category is male judges.

^c Reference category is judges appointed by Democratic presidents.

^d Reference category is cases outside the south.

^e Reference category is nonrural areas.

^f Reference category is cases alleging sex discrimination in addition to race and other forms of discrimination.

^g Reference category is motions that do not address any discovery question.

^h Reference category is cases with only an EEOC attorney representing the plaintiff.

ⁱ Reference category is cases with a single plaintiff.

^j Reference category is cases from the second and third circuit.

^* p < 0.05; ^**p < 0.01;

¹ p < 0.1.

Table 4 displays Model 4, which reports the final case outcome for cases alleging race discrimination and includes the same personal identity and local context variables as model one. Because multiple judges can handle a single case, I base the judge variables on the race, sex and party of a majority of the judges on the case. Due to the shrinking sample size at the case outcome level, interactions are not modeled.

Table 4. Logistic regression models of effects of judicial and regional variables on race cases

^a Reference Category is majority White Judges.

^b Reference category is majority Male judges.

^c Reference category is judges appointed by Democratic presidents.

^d Reference category is cases outside the south.

^e Reference category is nonrural areas.

^f Reference category is cases alleging sex discrimination in addition to race and other forms of discrimination.

^g Reference category is cases with only an EEOC attorney representing the plaintiff.

^h Reference category is cases with a single plaintiff.

ⁱ Reference category is cases from the second and third circuit.

^* p < 0.05

^*** p < 0.001.

Models 1 and 4 allows for testing of Hypotheses 1–5. Hypothesis 1 had no support in either model. This hypothesis predicted that as a division became more politically conservative, plaintiffs would be less likely to win. Hypothesis 2, which predicted that plaintiffs would fair less well in rural divisions, was supported at the case level as seen in Model 4, but not the motion level Model 1. The effect is such that plaintiffs achieve some measure of victory in 94% of cases outside rural areas and 80% within them. Hypothesis 3, which predicted that plaintiffs in the south would have less success, was not supported by at the case or motion level.

In line with previous research, Hypothesis 4, which held that Black judges would be more plaintiff friendly was supported at the motion level. Motions before Black judges have an 84% chance of being decided in favor of the plaintiff, while before White judges the chances are at 72%. At the case level, the effect could not be tested, as there was perfect collinearity between cases handled by majority Black judges and the plaintiff winning at least something. Thus, while it could not be formally tested, this serves as some evidence that the effect may also exist at the case level.Footnote ⁴ Hypothesis 5, which held that female judges would show more support for plaintiffs in race cases was not supported.

Models 2 and 3 test alternative Hypotheses 6 and 7 at the motion level, which tested whether Black judges before more or less plaintiff friendly as the division becomes more conservative. In the second model, I add an interaction between the judge's race and the percentage of Republican voters in the division. This model reveals an important result, which is that as divisions become more conservative, Black and White judges go in divergent directions. As seen in figure one below White judges become more likely to rule in favor of the defendant, while Black judges become more likely to rule in favor of the plaintiff. This is a crucially important finding, as it demonstrates that personal identity and local environmental context interact to produce multiple constructions. That level of Republican support was not relevant on its own, lends greater support for the idea that a constructionist framework must take into account how the identity of the parties impacts the influence of local context (Figure 1).

Figure 1. Influence of division politics and judge race on Plaintiff's probability of winning a motion in a race case

The third model add an interaction between judge race and whether the case is in the south. These results are marginally significant (<0.064) and show that while White judges are equally likely to rule in a plaintiff's favor in the south or outside, Black judges are more likely to do so in the south. Holding all other variables at their means, a motion before a Black judge in the south has a 97% chance of being decided in the plaintiff's favor, versus an 80% chance if it is before a Black judge in the north. For White judges, the chances are 71%, regardless of location. Analysis using standard in lieu of clustered errors shows this interaction to be significant at the <0.05 level. Given the low number of Black judges in general and especially in the south, there is reason to suspect that the change when using clustered errors reflects the limited computational powers with such low numbers of individual judges. Furthermore, for plaintiffs and attorneys, this low number still reflects their reality of the legal landscape. Thus, while it makes it more difficult to isolate the impact of race on this interaction versus individual judge dispositions, it is still of relevance to those in the legal practice (Figure 2).

A few important findings emerge from the data. We can see that context alone does not appear to be a powerful influence on legal decisionmaking. The only exception is the finding that at the case level, rurality demonstrates some limited influence. This is not necessarily surprising, as the constructionist model emphasizes that the construction of legality occurs via interactions of involved parties. This is why it is of crucial importance to consider how those parties interact in a specific context. The findings that judicial race interacts with level of local Republican support and possibly with presence in the south is strong evidence of how local conditions mediate the construction. This is congruent with previous research of lay-persons, which demonstrated that perceptions of discrimination were shaped by how the local environment and personal identity shaped the influence of each other. This lends further support to the body of research showing that judges are often subject to the same influences as lay-persons.

Additionally, the final model, looking at the case level, finds that the percentage of motions won by the plaintiff is a significant predictor of whether the plaintiff wins the case. This is important because it demonstrates that the effects that race and local context have on decisionmaking is not merely of abstract intellectual concern. It has discernable effects on the plaintiffs ability to win their case and goes even beyond that. Given the previous research showing how lawsuits can serve to deter discrimination and increase levels of diversity, it stands to reason that these favorable decisions have a cumulative effect on local levels of discrimination and equality (Table 5).

Table 5. Logistic regression models of effects of judicial and regional variables on sex motions standard errors adjusted for 296 clustered judges

^a Reference category is White judges.

^b Reference category is male judges.

^c Reference category is judges appointed by Democratic presidents.

^d Reference category is cases outside the south.

^e Reference category is nonrural areas.

^f Reference category is cases alleging race discrimination in addition to sex and other forms of discrimination.

^g Reference category is motions that do not address any discovery question.

^h Reference category is cases with only an EEOC attorney representing the plaintiff.

ⁱ Reference category is cases with a single plaintiff.

^j Reference category is cases from the 2nd and 3rd circuit.

^* p < 0.05

^** p < 0.01.

The influence of judge attributes and social context in sex discrimination claims

The analysis of sex discrimination involves mirrors that of race cases. Table 5 reports the first three models. Model 1 consists of the personal judge and social context, plus the control variables. Model 2 includes an interaction between judge gender and local politics. Model 3 includes an interaction between judge gender and whether the case is in the south. The second and third models mirror the significant interactions from my race models. Table 6 reports Model 4, which is the judicial identity and social context variables at the case level. Similar to race cases, the judicial identity variables are based on a dummy variable of whether the majority of judges political affiliation, race, and sex.

Table 6. Logistic regression models of effects of judicial and regional variables on sex cases

^a Reference category is White judges.

^b Reference category is male judges.

^c Reference category is judges appointed by Democratic presidents.

^d Reference category is cases outside the south.

^e Reference category is nonrural areas.

^f Reference category is cases alleging race discrimination in addition to sex and other forms of discrimination.

^g Reference category is cases with only an EEOC attorney representing the plaintiff.

^h Reference category is cases with a single plaintiff.

ⁱ Reference category is cases from the second and third circuit.

^** p < 0.01.

Models 1 and 4 test the first five hypotheses. Hypotheses 1–3, examining whether judges are less likely to rule on behalf of plaintiffs in more republican areas, rural areas, and the south are not supported at either the motion or case level. Hypothesis 4, which studied whether Black judges were more likely to rule in favor of plaintiffs was not supported at the motion or case level. This contrasts with previous research that found some support. Supplemental analysis demonstrates that this resulted from the decision to include a greater variety of motions than used in previous research. Supplemental analysis demonstrates that when motions addressing a discovery issue are removed, Black judges are more likely to rule in favor of the plaintiff. Further study could shed some light on why this effect varies based on the types of motions included.

Hypothesis 5, which predicted that female judges would be more plaintiff friendly than male judges was supported at the motion level, but not the case level. The results show that motions before a female judge have an 84% chance of success compared to 75% for motions before a male judge. This is consistent with previous research.

Models 2 and 3 test alternative Hypotheses 6 and 7, to examine whether there is an interactive effect between gender and southern context or level of Republican support. Neither of these hypotheses finds any support.

Similar to the findings in race cases, Model 4 shows that the percentage of motions won by the plaintiff has a significant effect on the final case outcome, once again demonstrating the important effects these motions can have on a cumulative level. As stated above, given the impact successful lawsuits against one company can have on levels of discrimination locally, the importance of influences on how wins these motions cannot be understated.

Differences between race and sex cases

It is notable that, in sex discrimination cases, neither social context nor interaction effects are observed at either motion or case levels. Thus, neither hypothesis six and seven, that female judges in conservative divisions would be more or less plaintiff friendly than their male counterparts, was supported. The lack of a locational effect deserves additional attention in the future. While it is possible that gender related issues do not vary by region, a more likely explanation is that the variation between regions is being balanced in some way. For example, conservative judges may be more likely to see their role as requiring them to “protect” women from lewd behavior in the workplace, while simultaneously being less receptive to claims of more subtle harassment or discrimination in pay, promotion, or hiring. There is no reason to believe there would be a comparable effect in race cases, wherein judges would be protective of plaintiffs for some types of allegations, but less receptive of others.