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Our employment discrimination lawyers have repeatedly discussed that there is no perfect or guaranteed case because of the variables and risks inherent in the judicial system – namely judges and juries. (Best Law Read: According To Judges, Are Bumblebees Considered Fish?; Judges Disagree Whether Elephant Is Person). While I have encountered a few racially and gender biased judges as well as a judge who took an afternoon break from a trial to go to his fundraiser with the defense attorney and the defendant only to come back the next day to dismiss the case on a technical issue, the vast majority of the judges are good people who tend to try their best to correctly apply the law or do what is right. However, sometimes judges just get it wrong – sometimes for the employer and sometimes for the employee.

In today’s blog, we look to the recent United States Court of Appeals for the Eleventh Circuit decision in Wheale v. Polk County, Georgia, No. 21-13676, 2022 WL 4953350 (11th Cir. Oct. 4, 2022). In this case, Laure Wheale was appointed to be a judge of the Juvenile Court in the Tallapoosa Judicial Circuit. Shortly after getting the job, Judge Wheale learned that she was being paid approximately $30,000 less than her predecessor and given approximately $19,000 less than her predecessor to hire an assistant. Worth noting is that her predecessor and his assistant had been given yearly raises after being appointed to the job 25 years earlier and that the starting salary for a new judge was not the same as a judge with 25 years of experience. As the United States Court of Appeals for the Eleventh Circuit held: “Judge Wheale’s predecessor and his assistant received higher salaries due to their longer tenure that led to multiple raises.” Id. at *3.

But that is not what doomed Judge Wheale’s lawsuit for gender discrimination under Title VII of the Civil Rights Act of 1964 nor equal pay violations under the Equal Pay Act (“EPA”). Judge Wheale sued three governmental entities, State of Georgia, Polk County, and Haralson County.

First, as a matter of Georgia law, Judge Wheale was not employed by the Counties. Because they were not her employer, they could not be liable under Title VII and the EPA as a matter of law. In addition to pointing out that a judge should know who her legal employer is, this does raise the issue that who your employer actually may not be as clear as you think. For example, just because you work at a McDonald’s doesn’t mean that McDonald’s is your employer. It is for this reason that it is critical that you bring your paystubs to meet with your employment attorneys.

Second, there were multiple problems with Judge Wheale’s claims against the State of Georgia. Initially, Judge Wheale failed to name the State in the charge she filed with the Equal Employment Opportunity Commission (“EEOC”), which means that she failed to exhaust her administrative remedies and was procedurally precluded from suing the State. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; The EEOC Will Not Help You Properly Fill Out The Charging Form; Read This Before Filing An EEOC Charge). Critically, if a judge can screw up the EEOC process, you should learn that you should not try to go through the EEOC process on your own. Get legal help from a qualified employment discrimination lawyer. But that was not even the worst problem.

Judge Wheale’s biggest problem with suing the State of Georgia is that Title VII defines an employee as “an individual employed by an employer, except [for] … an appointee on the policy making level ….” 42 U.S.C. § 2000e(f)(Emphasis added). The EPA similarly defines employees as “any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual … who is appointed by [the holder of a public elective office] to serve on a policymaking level.” 29 U.S.C. § 203(e)(1), (e)(2)(C)(ii)(III) (Emphasis added). And way back in 1991, the United States Supreme Court held that since judges “are appointees at the policymaking level,” they are ordinarily not considered employees for the purposes of Title VII. Gregory v. Ashcroft, 501 U.S. 452, 467, 111 S. Ct. 2395, 2404, 115 L. Ed. 2d 410 (1991). This means that state appointed judges do not have the benefit of Title VII nor ADA protection. To be clear, the United States Court of Appeals for the Eleventh Circuit also pointed out that judges are not protected by the Age Discrimination in Employment Act of 1967 (“ADEA”) – which is why judges can be forced to retire a certain age.

Certainly, if a judge can get the employment law wrong when pursuing her own case, a judge can get it wrong in any other employment. Moreover, Judge Wheale was presented with this binding precedent at the district court level but pushed forward contrary to the law. Then after the district court plainly cited the biding United States Supreme Court precedent and plain language of Title VII and the EPA in dismissing her case, Judge Wheale still filed an appeal. This is not just a case of a judge not understanding and not even researching the employment laws in her own case. This is a judge stubbornly refusing to acknowledge binding and clear law.

Judges are going to be wrong, even stubbornly so. The only good news is that the mistakes will balance out over time for employers and employees giving both sides risk in every case – which pushes settlement discussions. Of course, for individual employers and employees on the wrong end of a bad decision, the fact that it may even out in other cases does not take the sting away.

Do I have a case against my job for discrimination?

Best Employment Lawyer Answer: Because every case has different facts, the only way to figure out if you have a discrimination case based on your race, national origin, gender, age, religion, sexual orientation, gender identity, or disability is call in and schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Our Ohio, North Carolina, and Michigan attorneys at Spitz, The Employee’s Law Firm are dedicated to fighting hard for employees’ rights.


This employment law website is an advertisement. The employment discrimination materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I sue for unequal pay because I’m a woman”, “What should I do if the company that I work at pays women less for doing the same job as men?”, “My supervisor treats men better than female workers” or “I was fired for reporting race discrimination and sexual harassment to HR”, it would be best for to contact our employee’s rights attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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