What does gender bias look like in real life? (2023)

Vol. 93, No. 2 March/April 2019 p. 12 Kristen L. Palace Sponsored Article

Gender bias is the prejudice of one sex over the other.^[1]Often this bias is inherent in our nature—formed by our culture, upbringing, and personal experiences.^[2]A simple example of this bias is when a person refers to a person by their occupation, e.g. e.g. “doctor” or “engineer” and the person is assumed to be male. However, men are not immune to gender bias. For example, it is often assumed that female teachers, particularly those teaching younger children, are women.^[3]This makes it difficult for men to enter the field of early childhood learning.^[4]These notions, antiquated as they may be, are difficult to dispel and can be transferred to the workplace.

In legal practice, women lawyers may encounter certain hurdles that men may not encounter. Often a lawyer must be mindful of how her conduct is perceived by judges, juries, opposing counsel, and even her own clients. The same behavior when performed by a man can be construed differently than when performed by a woman. For example, if a male attorney appears outwardly frustrated or upset in the courtroom, he may be viewed as an assertive advocate for his client. When a lawyer shows the same emotions, she can be seen as temperamental or irrational. At the same time, the lawyer must be careful not to be perceived as “too soft” towards her client and opposing lawyer. These perceptions may be the result of an implicit bias.

Gender bias can affect women lawyers at all levels of the legal profession. Female attorneys may need to seek comments from male clients and colleagues who are concerned that a female attorney cannot go "toe-to-toe" with a male opponent. Regardless of their own experience, women lawyers are often reminded of the experiences of their male opponents. It is not uncommon to hear comments that because men speak the same "language" men can resolve disputes with opposing male attorneys more effectively and get their clients a better deal than their female team members. And we've all heard the stories of female attorneys being mistaken for clerks, clerks and paralegals -- or experienced it firsthand. The 2016 Florida Bar's Survey on Gender Equality in the Legal Profession confirms these anecdotal experiences.^[5]The survey revealed:

• Twenty-nine percent of female respondents and less than 1% of male respondents report having been personally addressed by male lawyers with names such as "sweetie" or "sweetie."

• 27% of female respondents and less than 1% of male respondents say they have personally experienced that female lawyers are treated with less respect than male lawyers.

• 18% of female respondents and 5% of male respondents say they have personally experienced being treated differently by an opposing lawyer in court or similar proceedings than other lawyers of the opposite sex.

• 17% of female respondents and 4% of male respondents say they have personally experienced being asked to perform lower level tasks not normally required of other lawyers of the opposite sex.

• 14% of female respondents and 4% of male respondents report that their work is personally attributed or viewed as being by another lawyer of the opposite sex.^[6]

Women in law who choose to have children face an additional set of gender biases: how much time to take off; will the sabbatical affect their partnership; Are their cases reassigned? The issue of continuing the maternity leave trial continues to be hotly debated and criticized by both women and men.^[7]

For example, Christen Luikart, a Jacksonville attorney, requested that her trial continue because of her pregnancy. Her male opponent resolutely opposed the requested continuation.^[8]He compared Luikart's pregnancy to an illness. Ultimately, Luikart's request was granted, but Luikart's story is not unusual,^[9]and not all women will have the same result.

Florida attorneys and the Florida Supreme Court are considering a new rule of law governing the length of parental leave.^[10]The rule would require judges to grant a request for 90-day continuation of lead counsel's parental leave if the request is made in a timely manner and does not cause material harm to the opposing party.^[11]If a party rejects the application due to significant disadvantage, the lawyer applying for the continuation bears the burden of proof that there is no significant bias. The proposed rule came about because it was becoming increasingly difficult for women lawyers to get their cases progressed, forcing them to transfer their cases to other lawyers because of their pregnancy.^[12]

Gender bias seems to make headlines on a weekly basis. For example, Judge Hughes, a male federal judge in Houston, garnered national attention after making demeaning and inappropriate comments that were beneath the dignity of the profession.^[13]The incident occurred as a prosecutor handed in new documents after the deadline set by Judge Hughes. After expressing his apparent displeasure, the judge was quoted as saying he told the prosecutor, "It was a lot easier when you guys wore dark suits, white shirts and navy blue ties" and "we didn't let girls do it in." the old days.” While the Court of Appeals ordered that another judge replace Judge Hughes, Judge Hughes later explained that his comments were directed at a woman in his courtroom who was “inappropriately dressed.” Whether made untimely or impulsively, Judge Hughes' comments highlight the core issue — gender bias is a real problem that affects attorneys on a daily basis, particularly female attorneys. In an environment that is still heavily male-dominated, women are often still not given the same skills as their male peers.^[14]

Although the legal system has made significant strides in combating gender bias, it is still an issue that affects both new and experienced women lawyers both inside and outside the courtroom. As we continue to raise awareness, recognize and learn to counter prejudice, women lawyers should not feel compelled to imitate their male colleagues or act differently than they normally would. Women advocates should be encouraged to rise above implicit and actual prejudices by refining their individual style.

KRISTEN L. PALACEis an attorney with Kim Vaughan Lerner LLP, a minority-owned law firm, and her practice focuses on the litigation and resolution of complex commercial, tort and insurance disputes. She is a member of The Florida Bar Diversity and Inclusion Committee and Vice Chair of the Broward County Bar Association’s Hispanic Lawyers’ Committee.