Despite the sensitive nature of employment-related claims like discrimination and retaliation and harassment and hostile work environment, it is rare for judges to admit to personal biases that could influence their decision-making.

But a federal district court judge has recently just done exactly that.  On August 30, 2018, the Hon. Lewis T. Babcock, a Senior United States District Judge for the District of Colorado, recused himself from a disability discrimination lawsuit because his son is quadriplegic and was a plaintiff in another disability discrimination suit.  Judge Babcock shared this family tie, and suggested that it might create the appearance of impartiality, while overseeing oral argument on an unrelated motion.

The matter before Judge Babcock, and the case involving his son, involved different types of discrimination claims under the Americans with Disabilities Act (ADA).  The lawsuit before Judge Babcock concerned a trucking company’s medical leave and fitness for duty policies, which were neutral in theory, but, according to the Equal Employment Opportunity Commission (EEOC), created a pattern of discrimination against disabled employees in practice.  The litigation involving Judge Babcock’s son pertained to wheelchair accessibility issues on buses and trains as places of public accommodation.

Nonetheless, Judge Babcock disclosed his son’s background as a quadriplegic and disability discrimination litigant on the record, and stated that he was concerned both about his ability to be impartial, and the appearance of a lack of impartiality.  The judge’s comments prompted the defendant trucking company to file a motion to recuse Judge Babcock from the case, based on the requirement under 28 U.S.C. § 455 that United States federal judges disqualify themselves “in any proceeding in which [their] impartiality might reasonably be questioned.”  Judge Babcock granted the motion and recused himself before the EEOC could file any opposition.

Since Judge Babcock made the remarks about his son in open court, his comments were characterized as public statements.  Even if a judge does not “reveal their hand” and question their impartiality on the record, a party in an employment matter could seek to disqualify a judge based upon remarks made outside the courtroom.  For example, this could occur if a judge presiding over a disability discrimination case gave a speech at a rally for disability rights stating that disabled persons face discrimination in employment.

Judge Babcock’s recusal differs significantly from other recent headlines regarding alleged judicial bias in the more general sense.  For example, in 2016, then-presidential candidate Donald Trump sought to recuse United States District Court Judge Gonzalo Curiel from presiding over the class action fraud lawsuits against Trump University.  President Trump claimed that there was an inherent “conflict of interest” because Judge Curiel is Mexican-American, and President Trump had declared his intentions to “build a wall” to keep out undocumented Mexican immigrants.  More recently, many commentators questioned whether Justice Brett Kavanaugh’s comments during his confirmation hearings, including characterizing sexual assault allegations brought against him as a “political hit,” could undermine the impartiality of the Supreme Court.

Judicial recusal remains rare, and Judge Babcock’s self-recusal may simply be a blip in the American judicial landscape.  However, in today’s political and cultural landscape (including the #metoo movement), the American public and news media have shown an increased willingness to question the behavior of those in power, and the judiciary is no exception.  In this environment, it remains to be seen whether litigants will seek recusal more often, particularly in cases involving employment harassment and discrimination.

Whether trends the future may bring, businesses with questions about the current impact of this decision on present, impending, or future litigation should contact counsel with experience in litigating matters involving unlawful discrimination in employment and places of public accommodation.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

 Alexander V. Batoff focuses his practice on counseling clients on federal and state employment laws and regulations and defending them in litigation.  He may be reached at 215-665-3048.