A Defense of Sotomayor's "Wise Latina" Remark - with No Rewording Required
	By BEN BRATMAN
	Friday, July 17, 2009

As Supreme Court nominee Sonia Sotomayor's confirmation hearings have progressed, senators and the media have focused heavily on one much-hyped comment. Famously, Sotomayor said that she hopes that "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

The comment reflects Sotomayor's apparent belief that a judge's ethnic background, gender, and life experiences affect—and can even enhance—her decision-making. In the political realm, Sotomayor's comment has received nary an endorsement, and has in fact elicited harsh criticism from Republicans as a moniker of identity politics. Meanwhile, Democrats in the Senate and President Obama have distanced themselves from the comment, suggesting the judge made a poor choice of words.

Thinking about Sotomayor's remark from a legal perspective, however, I am not troubled by it. (Nor do I find it to be merely a "rhetorical flourish," as Judge Sotomayor herself characterized it at the hearings.) Rather, I am intrigued by it – as I will explain.

I teach a law school course on a subject—employment discrimination—in which gender and ethnicity matter, and in which the unique perspectives of women and of Latinas (as well as of African Americans, Asian Americans, etc.) matter. It is a subject in which I encounter and teach federal appeals court decisions by white judges and male judges who are doing their best to adopt the perspective of an employee who is a woman and/or a member of an ethnic minority.

These cases—concerning alleged harassment in the workplace because of sex, race, or national origin—illustrate the relevance and importance of Sotomayor's remark. They also counsel against superficial rejection of that remark on the grounds that personal experiences categorically can never play a role in judging.

How Discrimination Law Encourages Judges to Put Themselves in Diverse Plaintiffs' Shoes

To see how Sotomayor's remark relates to the federal law of discrimination, it is necessary first to understand the basic framework of that law. Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to create or allow a work environment that is hostile or abusive for employees because of their race, color, sex, national origin, or religion. Most harassment cases fall under the sex category, and most sex harassment cases involve male employees—often supervisors—subjecting one or more female employees to various sex-based or sexual comments or conduct. However, there are also large numbers of race, national origin and religion harassment cases. (In all categories, there are also occasional "reverse" cases brought by men, Caucasians, Christians, etc.)

Title VII protection is triggered only where an employee's terms or conditions of employment have been altered, and that threshold is easily met in a classic case of termination or demotion. However, in a hostile work environment case, there must be a test for courts to apply to determine if the alleged harassment had a sufficiently negative effect on the work environment. It cannot be enough for an employee simply to allege she found her work environment altered by, for example, a few sex-related jokes told by her supervisor.

The Supreme Court established that test in a landmark 1986 case, Meritor Savings Bank v. Vinson. Under the test, the question of whether the harassment case will go to a jury rests in the trial judge's assessment of the conduct at issue and all the circumstances surrounding it. If—and only if—the judge believes the conduct was sufficiently severe or pervasive that a reasonable person in the plaintiff's position would find the conduct hostile and abusive, the case can go to a jury. If the losing party appeals, a panel of three appellate judges will apply the same test with a fresh set of eyes.

This test is objective, calling upon the perspective of a "reasonable person," in the sense that the plaintiff's bare opinion that she personally found the conduct hostile or abusive will not suffice. This is because Title VII does not protect against isolated or merely offensive jokes, epithets, insults, romantic advances, etc., on the theory that they do not adequately alter the terms and conditions of employment (i.e., they do not make the work environment hostile enough).

Despite the objective nature of the test, the Court wrote in Harris v. Forklift Systems Inc. that the judge must consider the plaintiff's position and take into account "all the circumstances." As Justice Scalia wrote for the Court in Oncale v. Sundowner Offshore Serv., Inc., the impact of workplace behavior "often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed."

Looking at Sotomayor's Comment in Light of Discrimination Law

How do these legal standards relate to how we might evaluate Judge Sotomayor's comment? The answer is that judges are asked by the law to take on the perspective of particular employees, and it is possible that judges who share certain characteristics with those employees will be more likely to accurately make that imaginative leap.

For instance, to invoke the facts of a real-life case, how does a judge assess whether a reasonable person in the position of a female employee would find the work environment hostile or abusive where her male supervisor occasionally called her a "dumb c*nt," suggested that she gave oral sex for money, and commented on her anatomy and on his desire to have sex with her? Presuming that the number of incidents is not too few or too many to make the case an easy call on the grounds of pervasiveness, the severity of the conduct should depend in part on the plaintiff's female gender. Given, among other things, the historical subjugation of women, their continuing struggles to advance in the workplace, the rampant sexual objectification of women in society, and their greater susceptibility to sexual assault, a reasonable woman in this position will likely react differently than a reasonable man in this position facing similar on-the-job slurs. Hence, it is fair to ask whether a female judge would likely do a better job making the call as to whether to send this case to a jury, or dismiss it, than a male judge would.

Similarly, how does a judge assess whether a reasonable person in the position of a Puerto Rican employee would find her work environment hostile or abusive where her white supervisor occasionally called her a "dumb spic," and once said she should go on welfare "like the rest of the spics"? Again presuming the number of incidents is not too many or too few to make the case an easy call on the ground of pervasiveness, the severity of the conduct should depend in part on the plaintiff's Puerto Rican origin. Given, among other things, the historical segregation of ethnic minorities, their continuing struggles to advance in the workplace, and the denigrating stereotypes they endure, a reasonable Puerto Rican in this position would likely react differently than a reasonable white American in this position facing similar on-the-job slurs. And again, it is therefore fair to ask whether a Puerto Rican or otherwise Hispanic judge would likely do a better job making a call in this case than a non-Puerto Rican judge would.

These two factual scenarios, combined together, are what a Puerto Rican woman named Jenice Torres experienced while employed by New York University in the early 1990s. She sued in federal district court for racial and sexual harassment and the trial judge dismissed her claim. Torres then appealed to the United States Court of Appeals for the Second Circuit, the court on which Judge Sotomayor now serves. In a 1997 holding in Torres v. Pisano, the Second Circuit reversed, deeming the conduct Torres endured sufficient to go to a jury.

Sotomayor herself did not serve on that three-judge panel; she joined the court one year later. Yet the unanimous opinion written by her current colleague, Judge Guido Calabresi, an Italian-born male, illustrates what Sotomayor is getting at in her controversial remark. (Calabresi's colleagues on the panel were also white males—Jon O. Newman and Denis R. Hurley, a district judge sitting by designation).

Why an Italian Male Judge's Insights Might Bolster a Puerto Rican Female Judge's Candidacy

In the opinion, while noting the frequency with which Torres's supervisor made some of the harassing comments, Calabresi also specifically designates the relevant inquiry as whether a "reasonable woman" would find the sex-based conduct hostile, and whether a "reasonable Puerto Rican" would find the race-based conduct hostile. The opinion cites numerous cases holding that the test indeed requires consideration of a reasonable person with the same fundamental characteristics of the plaintiff, including gender and race. Without explaining how the race or sex of Ms. Torres affected his or the other judges' decision-making, Calabresi goes on to conclude that Torres meets the test and, more than that, has a "strong" case—not a dismissable one.

Bearing in mind that Title VII does not prohibit merely offensive, inappropriate, or boorish behavior, what is it that led Calabresi and his two colleagues, both also white males, to conclude so confidently that the conduct at issue met the test? The racial and sexual epithets were uttered very frequently, and that cannot be discounted. Still, one can and should ask whether Calabresi's experience as an Italian immigrant who came to America to escape Fascism colored his perspective on the facts or enhanced his ability to put himself in Ms. Torres's shoes. In addition, did Calabresi's exposure or lack of exposure to female colleagues or Puerto Rican colleagues on the bench affect his thinking about the case? As men who are not Puerto Rican, yet were trying to assess the response of a reasonable female Puerto Rican, did the three judges overcompensate? In other similar cases where plaintiffs did not prevail, did white or male judges not compensate enough?

A recently published empirical study of racial harassment cases by Professor Pat Chew of the University of Pittsburgh School of Law and Professor Robert Kelley of Carnegie Mellon University Tepper School of Business, reveals that, even controlling for variables, the race of the judge affects outcomes in workplace racial harassment cases. One white trial judge in the District of Maine—in deciding the 1991 racial harassment case Harris v. Int'l Paper Co., which was brought by an African-American—noted that, "because Plaintiffs are black, the appropriate standard is that of a reasonable black person, as that can be best understood and given meaning by a white judge." (emphasis added). Indeed, it is hard to dispute the difficulty inherent in a member of one race trying to place himself or herself in the shoes of a member of another. The same can be said with respect to gender.

Which brings us back to the question raised by Judge Sotomayor's remark: In the Torres case or any other similar case decided by white, male judges, would a female and/or Puerto Rican judge, perhaps even Sonia Sotomayor herself, have more often than not reached a "better" conclusion?

The answer is debatable, but suggesting that the answer might be yes is hardly grounds for disqualification from the Supreme Court.

86 Washington U. L. Rev. 1117 (2009).