What Lawyers Need To Know About Gender Bias
Recent studies tend to indicate there is an undercurrent of gender bias in the legal profession.7 min read
2. B. SURVEY/STUDY RESULTS:
3. C. ARTICLES AND INTERVIEWS OTHER THAN THE ABOVE SURVEYS:
4. D. CALIFORNIA RULES OF PROFESSIONAL CONDUCT PREVENT DISCRIMINATION:
Excerpted from material by Institute for Continuing Legal Education
A. NATURE OF GENDER BIAS IN THE LEGAL PROFESSION:
1. Recent studies tend to indicate there is an undercurrent of gender bias in the legal profession. This text will examine areas of gender bias in the profession, with the goal of alerting practicing attorneys to both identification and elimination of gender bias in the profession.
2. As an approach to the identification and elimination of gender bias, we will focus on recent studies and articles concerning this area.
B. SURVEY/STUDY RESULTS:
1. Findings of the survey conducted by The Women in Law Committee of the State Bar of California in cooperation with The Employment Law Center, Legal Aid Society of San Francisco produced interesting results concerning gender bias. Summary of the findings:
a. Gender Bias: 85% of the women lawyers surveyed perceive a subtle but pervasive gender bias within the legal profession. Almost 2/3 agree that women lawyers are not accepted as equals by their male peers.
b. The greater the number of women lawyers in a particular workplace, the greater the perception of gender fairness by women attorneys in that workplace.
c. Some surveyed attributed gender bias to the unconscious behavior of male lawyers or to female lawyers not being part of the "old boys" network; however lack of awareness is not the only cause of gender bias. One respondent commented that young male associates trying to prove their points produced physically threatening behavior when no one else was present.
d. "Double bias": Women minority lawyers view themselves as being subject to both ethnic bias and gender bias, and a number of respondents suggested the rules of professional conduct be amended to prohibit both gender and/or racially biased conduct by lawyers.
e. Satisfaction in the practice of law: While 76% of the respondents expressed the would still choose to become lawyers, it is significant that 24% would choose another profession. Over half (55%) have some preference for working with other women lawyers, while 62% believe that they do not have as much opportunity for advancement as male lawyers.
f. Negative bias: 76% reported feelings of negative bias from opposing counsel, 64% from clients; 48% from superiors, and 43% from peers. It is interesting to note that most feelings of negative bias were from opposing counsel, and the least was from peers. While 65% did not make any career changes due to these perceptions of negative bias, it is statistically significant that 35% did, and that 37% made no career changes because they believed it would not be any better elsewhere.
g. A majority of those surveyed (62%) felt they are not accepted as lawyers by males in the legal profession, and eighty-eight percent felt there is a subtle but pervasive gender bias in the legal profession, while 38% felt they would never achieve equal status with male lawyers.
h. As to general levels of satisfaction with legal employment, 79% were satisfied with their present jobs, citing enjoyment from the challenges of legal work, the opportunity to meet interesting people and the opportunity to work in an enjoyable setting. Negative feelings were expressed concerning working too many hours, having too little time for family, and the difficulty of balancing professional and personal lives.
i. 66% of the women lawyers responding felt that they had fewer opportunities for professional advancement than men, and many expressed frustration about the "glass ceiling" that keeps them from advancing into particular areas. With respect to advancement, 53% of the respondents felt that all or more than half of all eligible women received promotions or partnerships compared to 64% reporting the same of eligible male lawyers in the same workplace.
j. Sexual Harassment: Nearly half of the respondents reported experiencing sexual harassment at their present or previous job, or in the legal profession generally. Only 13% reported significant decreases in sexual harassment over the preceding 5 years.
2. The 1990 Report of the Judicial Council Advisory Committee on Gender Bias in the Courts identified problems including:
a. Words and acts focusing on the sexual attributes or personal appearances of women participating in courtroom proceedings;
b. The use and manipulation of gender issues as a trial tactic;
c. Expressions that women should not be lawyers, or are inferior advocates;
d. Discrimination against women in bar activities, and
e. Conduct evidencing gender bias committed with either the encouragement or participation of judicial officers.
3. The July 1992 Preliminary Report of the Ninth Circuit Gender Bias Task Force concluded that gender remains a relevant issue in practicing law in the Ninth Circuit, including in the appointment process, in interpersonal conduct both in and out of court, in an individuals work and in the federal adjudicatory process. They also determined that men and women have significantly differing views on both the definitions and prevalence of gender bias.
1. 88% of Ninth Circuit judicial positions are held by men;
2. While 16% of Ninth Circuit practitioners are women, they make up about 40% of recent law school graduates.
3. Women identify their colleagues and opposing counsel as the source of much gender bias within the circuit.
4. 18% of women reporting observed or experienced sexual comments from male counsel; 40% reported comments about female counsel's sexual orientation, and 60% reported observing or experiencing sexual harassment by other attorneys, clients or judges.
C. ARTICLES AND INTERVIEWS OTHER THAN THE ABOVE SURVEYS:
1. Laura Mansnerus, writing in "Working Woman", reported: "Something terrible is happening in the practice of law...The profession itself is a big disappointment...if you can judge by what these women have to say about being a lawyer..."
2. The author of this article interviewed a number of women attorneys concerning their opinions about practicing law, whose opinions included:
a. "It's combative, it's confrontational and it's not very interesting."
b. "...When I think of what I would have to do if I went back to private practice, it turns my stomach."
c. "It's at best tedious, and at worst the tedium will kill you."
3. In her article, Mansnerus points to a survey by the American Bar Association done in 1990, in which women indicate higher dissatisfaction with the practice of law than men; 41% of the women in private practice responding indicated they were dissatisfied with their jobs, and 30% responded they were planning to change jobs within the next 2 years (compared to male respondents, respectively at 28% and 15%).
4. The author cites a study by Caplow & Scheindlin of women law school graduates and found that over a 20 year period, in 1967, 94% of women would still choose law as a profession, while 20 years later, only 54% would make that choice.
5. Mansnerus opines:
"...something more fundamental is making women walk away. In interviews with practicing lawyers, no-longer-practicing lawyers and career advisers to lawyers, certain themes sing out: Women are more demanding of social purpose in their work, more adept at revising their life plans, more critical of silly professional rituals and-this is the politically difficult one- less likely to take to a profession that is built on contention"
6. The author shares some personal feelings of interviewees:
a. Amelia Ribnick Kleiman, "Part of what put me over was the behavior of other lawyers amongst themselves. I was seeing people ripping other people apart and ripping businesses apart. I wanted to put things together." (Kleiman left the law and is now director of an endowment program in Texas)
b. Suzanne Veilleux, "There was no way I could say that what I did had meaning in the long run." (Veilleux left a New York firm and the practice of law)
c. Nancy Ashley, former law firm partner, "I don't want anybody to write on my gravestone, 'She was a commercial lawyer'..."I make a lot less money, but I am highly, highly satisfied with what I do" (Ashley left the law and went into planning and analysis in a social services consultancy)
d. Cheryl Clarke, "You get on this conveyor belt and never honestly step back and examine what you are doing. I should have been tipped off that it was less than personal when I was assigned attorney No. 210." (Clarke left the law and became director of development for a dental school.)
7. The author makes reference to certain aspects of gender bias experienced or observed by the women lawyers interviewed:
a. The perception that women lawyers feel less commitment to the profession because of family relations, i.e., "Women quit to stay home with the kids."
b. Earnings disparity; women lawyers earn less than men for the same work.
c. The perception that women lawyers can't take it...that they're not as tough as men.
d. That men do not believe sex discrimination is much of a problem in the legal profession.
D. CALIFORNIA RULES OF PROFESSIONAL CONDUCT PREVENT DISCRIMINATION:
1. California Rules of Professional Conduct, Rule 2-400
Rule 2-400. Prohibited Discriminatory Conduct in a Law Practice.
(A) For purposes of this rule:
(1) "law practice" includes sole practices, law partnerships, law corporations, corporate and governmental legal departments, and other entities which employ members to practice law;
(2) "knowingly permit" means a failure to advocate corrective action where the member knows of a discriminatory policy or practice which results in the unlawful discrimination prohibited in paragraph (B); and
(3) "unlawfully" and "unlawful" shall be determined by reference to applicable state or federal statutes or decisions making unlawful discrimination in employment and in offering goods and services to the public.
(B) In the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in:
(1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or
(2) accepting or terminating representation of any client.
(C) No disciplinary investigation or proceeding may be initiated by the State Bar against a member under this rule unless and until
a tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred. Upon such adjudication, the tribunal finding or verdict shall then be admissible evidence of the occurrence or non-occurrence of the alleged discrimination in any disciplinary proceeding initiated under this rule. In order for discipline to be imposed under this rule, however, the finding of unlawfulness must be upheld and final after appeal, the time for filing an appeal must have expired, or the appeal must have been dismissed (added by order of the Supreme Court, effective 3-1-94)
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