Gender Bias in the Legal Profession: The Need for More Women Judges, Implicit Bias Training and Legal Action

It has been two years since the American Bar Association (ABA) amended its professional code of conduct to bar lawyers from addressing women with sexist remarks, in the courtroom. The amendment was put to vote on Aug. 9, in response to a petition by female lawyers who complained of being routinely undermined during trials, with demeaning terms like “honey,” or “darling”. Similar anti-harassment policies are in place in 23 states and the District of Columbia.

Despite the amendment to the professional code of conduct, some judges and lawyers throughout the nation continue to engage in demeaning and inappropriate gender discrimination. Approximately 70% of female attorneys surveyed by the Defense Research Institute reported experiencing gender bias in the courtroom, according to a 2015 ABA research report (pdf). More than a third of the 300,000 members of the American Bar Association are women, according to a recent report from the ABA’s Commission on Women in the Profession, and female litigators have been subjected to male colleagues’ sexist comments for decades.

In 2016, a judge in California fined lawyer Peter Bertling $250 after he tried to fluster the opposing counsel with sexist remarks. “A sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common,” said judge Paul S. Grewal of the federal district court of San Jose. “The bigger issue is that comments like Bertling’s reflect and reinforce the male-dominated attitude of our profession.”

In 2018, the U.S. Court of Appeals for the 5th Circuit scolded a veteran judge for making sexist comments in his Houston courtroom, calling his remarks “demeaning, inappropriate, and beneath the dignity” of his profession. U.S. District Judge Lynn N. Hughes told a female prosecutor that “It was a lot simpler when you guys wore dark suits, white shirts and navy ties,” Hughes said, according to the 5th Circuit. “We didn’t let girls do it in the old days.”

As recently as February 2020, Family Court Judge Richard Miller II was lambasted in a 27-page decision by the state’s Commission on Judicial Conduct, which repeatedly voiced disgust with Miller’s comments to female co-workers. The Broome County, New York County judge should be fired for “shocking” sexual harassment and blatant retaliation against court employees, as well as for hiding personal income on tax returns and in official court records, the state’s judicial watchdog has ruled.

Still, on August 7, a Pennsylvania Superior Court panel admonished a common pleas judge for making sexist and offensive remarks to a mother and father in a domestic violence case, saying ”the parties, the public, and the institution of law” deserve better from a trial judge. a three-judge Superior Court panel criticized Bucks County Court of Common Pleas Judge Alan Rubenstein for calling a woman who was seeking a protection order against her ex-husband a “little blond honey,” who was “too dumb to leave,” and then referring to the ex-husband as a “punk” before insinuating he had an “inadequa[te]” penis.

“ We find these comments to be shocking, sexist, offensive, and egregiously inappropriate by a judge presiding over a PFA hearing,” Superior Court Judge Eugene Strassburger III said in the unanimous panel’s precedential decision in E.K. v. J.R.A.

The glass ceiling remains a reality in a host in and outside the courtroom. If the courtroom were merely another place where the advancement of women has been checked, that would be troubling, if not entirely surprising. But the stakes aren’t just a woman’s career development and her earning potential. The interests at stake in the legal profession are high—and, indeed, in the criminal context, the liberty—of her client are also on the line.

What makes the issue especially troubling are the sources of the bias—judges, senior attorneys, juries, and even the clients themselves. Sexism infects every kind of courtroom encounter, from pretrial motions to closing arguments—a glum ubiquity that makes clear how difficult it will be to eradicate gender bias not just from the practice of law, but from society as a whole.

Not all male lawyers and judges harbor sexist views of women, though many do. The problem is that many of these men occupy positions of power. Women make up only 33 percent of federal trial-court judges. As of June, Donald Trump had made 73 U.S.-attorney nominations. Sixty-six of them are men. The state-level statistics are just as dismal: 30 percent of trial-court judges are women. In 2015, according to the Women’s Donor Network, an advocacy group, 17 percent of elected prosecutors were women; women of color made up 1 percent. In the criminal context, the odds are that a female lawyer will face off against a male prosecutor in a contest overseen by a male judge.

Diversity adds immense value to the judiciary. For parties to a case and the public at large, the court’s legitimacy is strengthened when many of the decision-makers look like or share similar characteristics to them. As aptly described by Supreme Court Justice Elena Kagan, “People look at an institution and they see people who are like them, who share their experiences, who they imagine share their set of values, and that’s a sort of natural thing and they feel more comfortable if that occurs.”

It should be the responsibility of the Executive and Legislative branches of State and Federal governments to appoint and demand nominees who are qualified women. There must be mandatory regular training with a focus on various biases, including those having to do with gender, race, sexual orientation, socio-economic status, religion, and people with limited English proficiency or disabilities. Trainings could be carried out by implicit bias specialists and include presentations from affected litigants as well as organizations and bar associations representing various groups and communities, specifically those that are historically underrepresented. Implicit bias training could be mandated by the Federal Judicial Center or required by Congress.

Another way to mitigate bias is for state bars to require trainings as part of their Continuing Legal Education curriculum, as is the case in Minnesota. Minnesota’s Continuing Legal Education (CLE) “‘Course in the elimination of bias in the legal profession and in the practice of law’ … is designed to educate attorneys to identify and eliminate from the legal profession and from the practice of law biases against persons because of race, gender, economic status, creed, color, religion, national origin, disability, age or sexual orientation.” See Minnesota State Board of Continuing Legal Education, “Rules of the Board of Continuing Legal Education,” available at https://www.cle.mn.gov/rules/ (last accessed August 2019).

When all else fails, the laws that were enacted to help eliminate gender discrimination must be utilized to eradicate systemic barriers. In passing Title VII in 1964, Congress communicated a firm resolve to abolish gender bias in the workplace by prohibiting employers from discriminating on the basis of sex. Without such protection, women might never have gained entry into prestigious law firms or obtained the opportunity to advance to positions within the judiciary.

New Jersey’s Law Against Discrimination (NJLAD) has also proven to be an effective tool for women in their quest for equality in the legal profession. This legislation was designed to eradicate gender bias in the workplace by prohibiting employers from discriminating on the basis of sex. Sex-based discrimination lawsuits filed under the NJLAD has assuredly served as an impetus for employers to become more egalitarian.

Indeed, large corporations have been forced to settle claims of gender harassment and gender discrimination with payouts upward of $21 million (Gilbert v. DaimlerChrysler Corp., 2004; LexisNexis, 2010; Velez, et al. v. Novartis Pharmaceuticals Crop, et al., 2010). Discrimination lawsuits are time consuming and costly (James and Wooten, 2006), resulting in lower shares, lower public perceptions, higher absenteeism, and higher turnover (Becker J. C., Wright S. C. (2011). Yet another dark side of chivalry: benevolent sexism undermines and hostile sexism motivates collective action for social change. J. Pers. Soc. Psychol. 101 62–77. 10.1037/a0022615). Expensive lawsuits experienced either directly or indirectly should act as a big driver in the need for change.

In short, just changing how we relate with others, and demanding that others do the same, will not end gender inequality. Lasting change will only happen if the institutions that affect our lives also change. In the interim, the laws that prohibit gender discrimination must be utlizied to force that change.

If you are in need of a caring, aggressive attorney experienced in workplace discrimination law, call us now. Every situation is fact specific. You may not be sure but suspect that you have experienced workplace gender discrimination or gender bias, such as shostile work environment, passed over for promotion or terminated from employment. If you feel that you may be the target of an employer’s illegal gender based misconduct, do not hesitate to contact us at Burnham Douglass for a free consultation.

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