Legal Commentary

Are Judges ?Employees? Covered by State Antidiscrimination Law?

By Eugene Volokh

Howard v. Kansas City (Mo. Jan. 25) says ?yes,? as to state antidiscrimination law, and notes the difference of opinion among different states? courts on the subject. Judges are not covered by federal antidiscrimination law, and it?s not clear whether the Equal Protection Clause bars discrimination in the appointment of high-level officials (a category that might well include judges).

In this case, plaintiff was awarded ?$633,333 in compensatory damages and $1.5 million in punitive damages? (plus attorney fees and prejudgment interest), because the jury found that she was denied a judicial appointment because she was white:

[T]he plaintiff, Melissa Howard, applied for the position along with 12 other applicants. From that pool of applicants, the commission nominated three Caucasian women to fill the vacancy. One of those three nominees was Howard. This panel was submitted to the council October 30, 2006. At its meeting November 9, 2006, the council rejected the panel by a 7?6 vote, despite acknowledging that all three panelists were well-qualified for the judgeship....

Several council members expressed dissatisfaction with the panel because it did not include any minorities. Multiple statements made during the city council meetings, which were open to the public, addressed concerns that the all-Caucasian female panel lacked diversity. [Statements omitted. ?EV] ... Several council members also testified at trial as to the influence that the panelists? race had on the council?s decision to reject the panel. One councilman agreed that race ?was involved? in the council?s refusal to consider the applicants selected by the commission, and another councilman testified that, had the commission placed a minority on the panel of final applicants, he would have voted to consider the panel. Mayor Kay Barnes similarly testified that ?race was a factor in [her] decision to reject the panel? and she likely would have voted to select a judge had an African-American candidate been on the panel, despite acknowledging her lack of knowledge as to the commission?s interview and selection process.

Full post as published by The Volokh Conspiracy on February 09, 2011 (boomark / email).