Hostile work environment

One of the more difficult problems for employers is harassment by unknown co-workers. The law was designed for harassment by supervisors. It functions not so well when the harassment is caused by co-workers. In Tolliver v. YRC, Inc., No. 17-10294, 2018 US LEXIS 17806 (5th Cir. 6/28/2018), African-American workers were harassed in various ways for over 15 years. The black workers encountered racist graffiti, nooses, and other incidents. The district court refused to allow evidence of incidents which occurred beyond the 300 day limitations period. So, the court only addressed two incidents, a noose left in YRC facilities and racist graffiti left on a YRC truck. It was not known who committed these acts.

The court found these two incidents were not sufficiently pervasive or severe to amount to a hostile work environment. The court noted that the plaintiffs did not contend that the two incidents were directed toward them. And, said the court, “for the most part,” the plaintiffs learned of the two incidents second-hand.

But, even if the two incidents were sufficiently severe or pervasive, management took prompt and remedial action. The company posted a $25,000 reward for information about the incidents. It interviewed hundreds of employees. It hired security guards, and it contacted law enforcement. The employer also provided weekly reminders about its non-discrimination policies. The employer did not discipline anyone, because the perpetrators were not found.

As the court added, Title VII is not a behavior code. It prohibits discrimination. Essentially the court is saying Title VII does not require the employer to deeply investigate acts of apparent racism. Most courts require reasonably swift action, and not much more than asking employees if they know who committed the acts. This decision is in line with those prior authorities. The Fifth Circuit affirmed the grant of summary judgment. See the decision here.

Sexual harassment cases are complicated. The legal standard is that harassment by co-workers which is “severe or pervasive” will constitute a hostile work environment – if of course, management knows about the harassment and does nothing. But, what happens when the harasser is a customer? If an employer is aware of the harassment and does nothing, the employer is liable. In Gardner v. CLC of Pascagoula, LLC, No. 17-60052 (5th Cir. 6/29/2018), we see an additional twist. What happens when the person doing the harassment is a patient suffering from dementia?

The plaintiff was employed as a certified nursing assistant at an assisted living facility. She had years of experience in the field. Perhaps, that is why she was assigned to J.S., a difficult patient. J.S. was elderly. He suffered from dimentia. He would grope the female employees and become violent when they would resist. One day, he tried to grope Ms. Gardner. She resisted. He struck her breast. He struck her again, as they tried to move him. She may or may not have swung toward him deliberately missing him. She walked out, allegedly saying she was the wrong skin color. The other white nurse apparently was able to calm down J.S.

Ms. Gardner went out on worker’s compensation leave and was fired when she returned to work. The employer said her comment was racist and that she tried to hit J.S. The CNA filed suit. The employer was granted summary judgment.

There was no question J.S. frequently tried to grope women, on their thighs, breast, buttocks and their private areas. He did this daily. The appellate court found this was “severe or pervasive” harassment. J.S. was eventually moved to an all-male facility with lock-down security.

Ms. Gardner might have still lost her claim, but her supervisors were derisive toward her complaints about J.S. One of them told her to put on her big girl pants. And, as the court pointed out, another element of a sexual harassment claim is that management takes no action to stop the harassment. The court faulted management for doing nothing to even try to stop the harassment. After J.S. had punched her three times, she asked to be transferred. Management told her no. Management clearly was not even trying to fix the problem. The plaintiff presented evidence regarding what other nursing facilities had done where she worked. They would require two or more aids, try to use medications to control behavior, or simply transfer the patient to some other facility. CLC took none of steps. And, of course, long after firing Ms. Gardner, CLC did finally transfer J.S. out of the facility.

The court recognized that there may be times when it is simply not physically possible to keep an ill patient from acting aggressively. But, there were things the employer could have done this time, in this case. But, it did none of those. The Fifth Circuit reversed the grant of summary judgment. See the decisions here.

In a recent decision, the Fifth Circuit overruled Judge Lynn Hughes, again. The Fifth Circuit reversed Judge Hughes’ grant of summary judgment on several claims. The claims started when Karen D’Onofrio left Vacations to Go, the largest seller of ocean-going cruises in the world. Karen was a sales representative for Vacations. After a couple of years with Vacations. Karen’s husband sustained an injury to his back. About that same time, Michael, her husband, decided he would purchase a franchise with OneCruise, a competitor of Vacations. Karen took some time off to care for Michael. While she was out, she attended a training for OneCruise. She had planned to service her customers while out on FMLA leave. But, she failed to respond to emails. Customers complained. So, Vacations moved her customers to in-house sales reps.

Vacations then erroneously sent an email to customers, including Michael, that Karen no longer worked for Vacations. She had in fact been locked out of her online customer accounts. Karen, believing she had been fired applied for unemployment benefits. After several months, Vacations emailed Karen asking when she would return to work. Karen replied that she would not return, because she thought she had been fired.

Karen sued Vacations in state court for FMLA violations and hostile work envfironment. Vacations counter-sued for breach of a non-compete agreement and added Michael as a defendant. Vacations also sued for fraud, conversion of confidential information, and tortious interference with existing and prospective business relations. The company also removed the suit to federal court and Judge Hughes. Karen moved to voluntarily dismiss her FMLA claims, which Vacations opposed. The district court denied her motion to dismiss. Michael moved to be dismissed form the case, which motion the judge never addressed. Judge Hughes stayed discovery, as he often does. Vacations then moved for summary judgment, which the district court granted.

On appeal, the Fifth Circuit first addressed the evidence for the motion for summary judgment. The employer’s affidavits, noted the appellate court, were conclusory. Various Vacations employees submitted affidavits that concluded Karen had a valid non-compete agreement in place and she had violated it. That was a legal conclusion, said the court. Employees also speculated as to the damages, and did not explain how they arrived at their assessment of the damages. The employees did not even claim to have firsthand knowledge of the damages. The plaintiff’s objections to the affidavits should have been sustained, said the court. They were not competent evidence for summary judgment.

The Fifth Circuit found the district court had granted summary judgment on Karen’s hostile work environment claim without giving her notice that such a claim was before the court. The distrioct court granted summary judgment as to her hostile work environment claim sue sponte from the bench.

The district court quashed discovery, but would allow discovery by specific order. There was no order in which Judge Hughes allowed Karen to conduct discovery as to her hostile work environment claim. With no discovery on the claim, she was not prepared when the court ruled from the bench that it would grant summary judgment as to her hostile work environment claim. The court reversed the granting of summary judgment as to Karen’s hostile work environment claim.

The appellate court did affirm summary judgment as to Karen’s FMLA claim. Vacations had given her a choice. She could work from home and service existing customers or she could take a straight FMLA leave with no work. She chose to work from home. That choice prevents any claim that Vacations interfered with her FMLA rights.

Regarding the breach of a non-compete agreement, the Fifth Circuit found the agreement to be overbroad. The agreement had no limits, which means it was, in effect an industry wide agreement. Texas law forbids industry wide non-compete agreements. It had no geographic limit and it applied to any job for any competitor. The agreement would apply not just to any other cruise line, but to any travel company. The non-compete agreement applied too broadly, said the Fifth Circuit. The Fifth Circuit remanded this claim back to the district court for proceedings to determine the geographic limits Karen worked and the customers she serviced. The court could not determine what the limitations of the non-compete agreement were without more information about to whom she sold the product.

Regarding Vacations’ other claims, the Fifth Circuit found there was substantial issue of fact, such that summary judgment was not appropriate. The district court also incredibly awarded attorney’s fees against the D’Onofrios in the amount of $174,000. The higher court reversed that award. Judge Hughes has been reversed yet again.

See the decision in D’Onofrio v. Vacation Publications, No. 16-20628 (4/23/2018) here.

Many workers believe they have been subjected to discriminatory comments by co-workers. Harassment by co-workers is sometimes referred to as a hostile work environment. It does not become actionable until management becomes aware of the harassment and fails to take action. But, what if the perceived discrimination is not necessarily discrimination? In Barnes v. Prairie View A&M, No. 14-15-01094 (Tex.App. Hou. 6/15/2017), Patrice Barnes, African-American, believed she was subjected to racist comments by co-workers. A long-time employee, she began complaining in 2007 about racist comments. A white co-worker observed ceiling insulation falling on people below and said it looked like an “old fashioned tar and feathering party.” Ms. Barnes explained to a third co-worker that tar and feathering referred to actions taken against slaves, and the white co-worker still made the remark again. Ms. Barnes accused co-workers of hiding paperwork and files, of asking her the same questions over and over, talking over her at meetings, etc.

The 14th Court of Appeals in Houston said this conduct did not amount to a hostile work environment. To constitute harassment, the actions by the co-workers must be severe or pervasive. The court addressed the tar and feathering remark and a second remark.  A secretary told one of Ms. Barnes’ clients to go to the white agent, not Ms. Barnes, because Ms. Barnes’ office was the “black” program. It found those two remarks, even if they were deemed racist, were not enough. Two remarks are not enough to constitute a severe or pervasive harassment. Prairie View argued the remarks were based on mis-understandings. The court was not willing to characterize them as racist. Indeed, we have to comment that tar and feathering has some notoriety in American history, but at least to my knowledge, not involving slavery. A remark that is capable of two or more different meanings will not be deemed to be racist.

Regarding the other allegations of conduct by co-worlers and her supervisor, the court found no connection to race. Ms. Barnes argued that since she was the only African-American in the office and because she was the only person subjected to those actions, then it must be race related. The court would not go there. Most courts will not infer racism from targeted actions alone. There has to be something more. The Fourteenth Court did agree that racism need not be explicit. But, the plaintiff has not pointed to any evidence which would support a racist animus on the part of the supervisor. The court of appeals affirmed the grant of summary judgment. See the decision here.

I have been told myself by potential clients that an entire office is discriminating against him/her. But, it is exceedingly difficult to show several employees are acting in concert based on race. That sort of allegation would need better evidence, not lesser evidence.

The Fifth Circuit has apparently decided that an employer will get a free pass when a supervisor makes one and only one racist comment. The supervisor was a co-worker of Courtney Satterwhite when he made the comment. Harry Singh, according to Mr. Satterwhite, uttered “Heil Hitler” during a conversation, at which a Jewish worker was also present. Mr. Singh claims he merely said “we are not in Hitler court.” Regardless of what was said, Mr. Satterwhite reported what he heard to City of Houston Human Resources. Mr.Singh apologized to the Jewish co-worker. A higher level manager verbally reprimanded Mr. Singh. Mr. Singh approached the Jewish co-worker to ask him why he had reported the statement. The co-worker said he did not report the comment. Mr. Satterwhite reported the statement to HR, said the co-worker.

A few months later, Harry Singh is promoted and now becomes Mr. Satterwhite’s boss. About that time, the Jewish Anti-Defamation League sent two letters to the Office of Inspector General for the City complaining about the “Heil Hitler” comment. The OIG investigated and also found Harry Singh at fault. Over the next few months, Mr. Singh disciplined Mr. Satterwhite on several occasions. In an email, Courtney Satterwhite accused Mr. Singh of singling him out for reprisal because he reported the Hitler comment. A short time later, Mr.Singh sought the demotion of Mr. Satterwhite. At a hearing within the City of Houston, Mr. Satterwhite said this was reprisal because he complained about Mr. Singh’s statement. Nevertheless, Mr. Satterwhite was demoted two grades. Mr. Satterwhite then filed a complaint with the EEOC.

At the trial level, the district court granted summary judgment for the employer. The Fifth Circuit affirmed. The higher court found that the issue was whether the statement, “Heil Hitler,” created a hostile work environment. The court correctly noted that whether a hostile work environment is created depends on the nature of the harassment, including its severity. But, this is not a hostile work environment case. Mr. Satterwhite did not report the statement because he believed Mr. Singh was harassing him. He reported the statement because he thought it was harassing, or potentially harassing toward the Jewish co-worker. This is a straight retaliation case, not a hostile work environment case. The court cites a 2007 case, Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 349 (5th Cir. 2007) for the holding that a remark by a supervisor could not “reasonably” have been perceived as a racist comment. The phrase “ghetto children” was an isolated comment, said the court in Turner. And in Turner, there were other observations by the plaintiff suggesting that race was a motive on the part of her supervisor. The Fifth Circuit was wrong in Turner. The jury should have construed that one remark, not the court.

The higher court is also wrong in Satterwhite. The jury should construe the remark and its context, not the court. The Satterwhite opinion adds that one “isolated” discriminatory comment will not create a hostile work environment. The court found that a person could not “reasonably” believe that one statement will create a hostile work environment.

Well, that depends, doesn’t it? It depends on the context of the one statement. And, who determines the value of context? The jury should. The purpose of jury is to establish community values and context. The Fifth Circuit is wrong to apply its version of “reasonable” and disregard the value of a jury. See decision in Satterwhite v. City of Houston here.


I tell my clients regularly that even when a plaintiff wins, most juries do not award compensatory damages or punitive damages. Punitive damages are rare in employment cases. What would be required for a jury or judge to award punitive damages. We get a look at what is required in Rhines v. Salinas Construction Technologies, Ltd., No. 13-40473 (5th Cir. 6/25/14). In this case, the jury found in favor of the employee and awarded $2,200 in lost wages and benefits, $10,000 in compensatory damages and $50,000 in punitive damages. The employer appealed. The judge reduced the punitive damages award to satisfy the cap of $50,000 for compensatory and punitive damages. 

The Fifth Circuit opinion noted the evidence at trial showed That Mr. Rhines, African-American, was the recipient of many racial epithets. Co-workers, and later his foreman, referred to Mr. Rhines as "guero," which means white guy. His project manager referred to him as his "boy." Mr. Rhines asked the project managerto stop, but he would not. The supervisor referred to him with the n-word in English and Spanish. Mr. Rhines then complained in writing to the company office. The company did not respond. His supervisor told him not to contact the company again. Mr. Rhines asked for time off to be with his dying brother. Not receiving a response, he took time off anyway and was fired. 

The court found there was sufficient evidence of hostile work environment. The employer defended with claims they had an EEO policy. But, it turns out the company lied to the EEOC when they claimed to have appointed an investigator to look into Mr. Rhines’ claims. The purported investigator testified that he had no involvement in any investigation. 

Evidence at trial also showed that the company lied when  it claimed that Mr. Rhines had never submitted a written complaint about discrimination. The supervisor admitted that he was in a hurry when he signed an affidavit saying he had not referred to Mr. Rhines with racial comments ("Guero" and "wuedo" – light skinned). T

To award punitive damages, a jury must find there was a positive element of conscious wrongdoing. The Fifth Circuit found this standard for punitive damages had been met. The false information provided to the EEOC shows such wrongdoing. The lack of a good faith effort to investigate shows such wrongdoing. And, Salinas Construction knew its workers referred to Mr. Rhines with racial comments. Yet, it submitted information to the EEOC denying the use of racial epithets. That was sufficient evidence to support the award of punitive damages. See decision here

Unfortunately, this decision will not be published beyond the court’s website. It is an unpublished decision. 

The law must reflect the everyday reality of all Americans.  If the law is not grounded in reality, it is no longer "the law."  It becomes something oppressive.  Judge Tate, a long-time judge on the Fifth Circuit, used to say that an appellate decision should make sense to a barber in Ville Platte, Louisiana.  He meant that any decision should be "explainable" to an average person.  The recent decision in EEOC v. Boh Brothers Construction Co., L.L.C., No. 11-30770 (5th Cir. 9/27/13), reflects the reality I understand.  But, I am struck by the two dissents.  The decision is en banc, meaning the entire court heard the case.  The en banc decision overturns the previous decision by a smaller panel of judges.  

In EEOC v. Boh Brothers, the EEOC represented Kerry Woods, an iron worker in New Orleans.  His supervisor, Chuck Wolfe, harassed Mr. Woods because, in Mr. Wolfe’s view, Mr. Woods was not masculine enough.  The EEOC accused the employer of creating a hostile work environment.  The jury found in favor of the plaintiff and awarded compensatory and punitive damages.  Mr. Wolfe supervised a crew of five.  He was vulgar and ribbed his men constantly.  Within a year, Mr. Woods became the supervisor’s primary target.  Mr. Wolfe referred to Woods as "pu–y," "princess," "fa-ot," to or three times a day.  About two or three times a week, when Mr. Woods would bend down to pick something up, supervisor Wolfe would approach him from behind and simulate anal sex.  Mr. Woods felt embarrassed and humiliated.  The supervisor would urinate during work and wave to Woods and smile while doing so.  

According to Mr. Wolfe, some of the teasing started when Mr. Woods said he brought wet wipes with him for lunch.  According to the supervisor, the co-workers teased him about that.  Mr. Wolfe said if you bring that to work, then you should not tell anyone.  He said it was feminine to use wet ones. 

The iron worker complained to the foreman who did nothing.  Within a few months, Mr. Woods asked to see a co-workers’ time sheets.  Mr. Wolfe said that was a terminable offense.  He said Mr. Woods did not fit in.  He was "different."  The supervisor said he was "done with" Mr. Woods.  The iron worker was then transferred.  Mr. Woods then complained to the general superintendent.  The superintendent investigated, found the supervisor’s conduct to be unprofessional, but did not rise to the level of sex harassment.  

A few months later, Boh Brothers laid off Mr. Woods.  He filed a complaint with the EEOC alleging sex harassment.  The jury found in his favor.  The employer appealed.  The first panel overturned the jury verdict, saying there was insufficient evidence to support the jury result.  

The plaintiff then appealed to the en banc court, which upheld the jury verdict.  The majority found that there was sufficient evidence to show that the supervisor harassed Mr. Woods because of his sex, because he was not "manly" enough.  The supervisor, said the majority,  was engaging in sex stereotyping.  Supervisor Wolfe specifically said he targeted Mr. Woods’ masculinity.  The majority opinion noted it had to draw all inferences in favor of the plaintiff.  The majority noted that the seminal decision regarding same sex harassment, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), states that the courts cannot impose a "code of civility" on the workplace.  The court must also display some sensitivity to the social context of the alleged harassment.  But, as the majority noted, this analysis is necessarily fact specific.  Social context is a jury issue, not a judge issue.  

There are three dissents to this decision, but two which cause me some concern.  Two dissents reflect a lack of respect for the role of the jury.  And, in my opinion, these two dissents seek to impose on the jury a wrong-headed view of the all-male workplace.  

In Judge Jones’ dissent, she acknowledges the supervisor’s vulgar and crude remarks.  She claims there is no "hard" proof that the supervisor’s conduct was motivated by gender.  Okay, but the jury was persuaded there was just such evidence.  Judge Jones is drawing no inference in favor of the jury verdict.  In the judge’s view, the majority decision imposes a "speech code" on the public.  In her view, these epithets were not related to sex.  The judge persists in according no deference to the jury’s view that the speech did indeed concern sex.  The judge adds that "everyone" knows what sex stereotyping is.  Opinion, at 48.  She argues that in Mr. Woods’ workplace, crude sexual epithets are very common.  Again, the judge is substituting her opinion for that of the jury.  In our legal system, the jury has the responsibility to find or recognize social norms.  In the civil legal system, used in such countries as France and most of Europe, a well-trained judge has the duty to recognize social norms.  But, in our legal system, inherited from England, that duty belongs to a jury of our peers.  

And, on a personal level, I find her contention to be simply wrong.  I served in the U.S. Army and Army Reserve for 28 years, most of that time in the Infantry.  The Infantry is definitely an all-male environment.  I also worked in several civilian all-male workplaces, from warehouses, to road crews to one month digging ditches for a sprinkler company.  "Crude sexual epithets" were not the norm, at all.  In fact, the sort of harassing exhibited by Chuck Wolfe would get him "run off" or fired from any construction crew I was a part of.  The judge is right that things are more crude on a work crew.  But, too much harassing causes tension.  Tension decreases efficiency.  Decreased efficiency on a work crew will not be tolerated.  Judge Jones displays a simplistic, paternalistic view of the all-male work environment.  Worse, she minimizes the evidence presented at trial.  

For one week, I once worked for Sears delivering major appliances.  My driver and my boss was one of those "crude" persons Judge Jones describes.  His name was Robert or Roberto.  It was hard to hear him in the loud truck.  The cab was not air conditioned, so the windows were always down.  Being the college kid I was, I would always respond with "pardon me" when the noise was too loud.  He loved that.  He would guffaw loudly and proclaim, "no pardon needed!"  I knew even then that, if I had made crude sexual epithets toward other workers, Robert would have "run" me off or had me  fired.  He just would not have tolerated unnecessary tension.  Tension decreases efficiency.  And, yes, even blue collar folks have some manners. 

Judge Smith’s dissent is similar.  He ascribes the majority’s opinion to the realm of "political correctness and social engineering."  Opinion, at 62.  Judge Smith remarkably cites evidence to contradict the jury’s finding.  Judge Smith states that according to certain NFL players, using wet ones is not feminine.  Judge Smith misses the point.  The point is not what is "truly" masculine, but what Chuck Wolfe believed was masculine.  His information is not pertinent.  This information was not part of the trial.  Judge Smith’s dissent strikes me as more political than legal.  The judge concludes that the "hypersensitivity" exhibited by the trial verdict will hasten "cultural decay" and undermines at-will employment.  Again, I do not understand how we get to "cultural decay" in a Title VII lawsuit.  This sounds more like a political argument than a legal one.  See opinion here

But, in the end, neither Judge Jones or Judge Smith can explain how a jury, with no apparent stake in the outcome of the trial, arrived at a completely different conclusions about all-male workplaces and blue collar manners. 

The Fifth Circuit has recognized that a hostile work environment claim can exist under the Age Discrimination in Employment Act.  The Fifth Circuit has never reached such a conclusion before now.  In Dediol v. Best Chevrolet, Inc., the Federal appellate court reversed a grant of summary judgment in favor of the employer.  

The Court found that such a claim would include the following elements: 1) the employee is over the age of 40, 2) the employee was subject to harassment based on age – either through actions or words, 3) the harassment is severe enough that it  creates an objectively intimidating, hostile, or offensive work environment, and 4) the employer is liable in some way.  See decision.  Mr. Dediol was 65 years old while he worked for Best Chevrolet.  Typically, the employer would be liable if it became aware of the harassment and failed to take action or if a supervisor conducted the harassment against the worker. 

In this case, Mr. Dediol showed that his supervisor called him names such as "Old mother f*****," "old man," and "pops" several times everyday for eight weeks.  The manager also made negative comments about the employee’s faith.  Mr. Dediol was a born-again Christian.  The plaintiff eventually quit coming to work. 

Evidence showed that that the supervisor charged at the plaintiff at a staff meeting, threatened to "kick his a**."  He removed his shirt saying, "You don’t know who you’re talking to.  See these scars.  I was shot and in jail"  

Mr. Dediol quit coming to work and was then terminated.  The Fifth Circuit found that this was sufficient evidence to support a claim for constructive discharge.  That is unusual.  The Fifth Circuit rarely sees a situation it considers sufficiently severe to justify an employee resignation. 

 Many employers completely prohibit relationships between management and subordinates.  The military has some complicated rules regulating relationships and it too prohibits relationships between those with very different ranks.  But, studies show, nevertheless, that relationships continue in the workplace.  The workplace remains a prime source of marriage partners.  But, the problems developing in the wake of David Letterman’s revelation about his relationships at CBS show the danger involved.  Even after ending the relationship, they can fester and develop into sexual harassment.  Co-workers can take sides in some perceived conflict and start a hostile work environment.  

Such relationships can become sexual discrimination if the employer takes adverse personnel action against one party but not both.  There are many traps for the uneducated.  That is why most large employers simply prohibit them.  CBS prohibits them, as this story explains.  So, yes, it is fair to say that Mr. Letterman could lose his job over this.  If CBS punishes no one, then it risks that no one will take its policies seriously.  If they punish the female subordinates but not the male manager, then it looks like gender based discrimination.  Looks like a no win situation for CBS, at this point. 

 I have been in the trenches, too long.  II have been representing employees in their struggle for justice and vindication, too long.   After all these years, I tend to look at judges in terms of how they will look at employment lawsuits.  I should be more balanced, but have to admit that I am not.  President Obama is looking at several possible nominees, based, he said, on how well they empathize with working people.  

That is music to my ears.  I have seen way too many cases decoded on appeal by judges who have never had to meet a payroll, never had to struggle with a minimum wage job, and never had to dig a ditch.  Way back when, I worked my way through college digging ditches, cooking hamburgers, and waiting on tables.  I did what I had to do.  My former supervisor at my ditch job, asked me once, "will you remember us when you get to be a lawyer?"  He meant will I remember the working people when, in his mind, I become rich and successful?  Well, I am not rich, but I hope I do remember my roots.  Too many appellate judges (who decide an awful lot of cases) have never done any of this sort of work, have never known people intimately who have dug a ditch.  

Struggling by itself does not make a good judge.  But, it does lend perspective.  As a country, we know this already.  That is why for decades, there was a "Jewish" seat on the Supreme court, a "Catholic" seat and now, one might argue, a "female" seat and an "Africa-American" seat.  As a country, we know that people who are not female will not understand fully the issues of women.  We know that Caucasians will not fully appreciate African-American issues.  Having represented many people who had real jobs in the real world, I believe that judges who never worked during college or law school, who went from law school to big law firm and then to a judgeship, just cannot fully appreciate the issues of people who had "real" jobs.  

How else do you explain a decision in which a black man is referred to as boy on several occasions, yet the Fifth Circuit Court of Appeals finds this does not equate to hostile work environment?  The life  experiences of a judge do matter.