The evil of discrimination based on impermissible characteristics pervades many aspects of society (including employment, housing, and public accommodations) and exists in all, or nearly all, industry sectors.
Here I will discuss how it arises in connection with the practice of law.I will not discuss gender discrimination arising in the course of an attorney’s employment. Such conduct, while implicating the laws prohibiting gender discrimination (e.g., Title VII, the Equal Pay Act, NY Labor Law 194, and the New York State and City Human Rights Laws), is beyond the scope of this post.
In August 2016, the ABA approved ABA Model Rule 8.4(g), which provides:
It is professional misconduct for a lawyer to: … engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
This goes beyond ABA Model Rule 8.4(d), which makes it “professional misconduct to … engage in conduct that is prejudicial to the administration of justice.” Rule 8.4(g) was, apparently, prompted by use of inappropriate language towards female lawyers, such as “honey” and “darling.”
How might gender discrimination arise in the context of the practice of law? Here are a few ways:
- Using derogatory/patronizing/condescending terms or making sexist remarks, e.g., “honey,” “dear,” “[first name]” in lieu of “Ms. ___” or “counsel,” etc.
- Applying differing standards to men and women (e.g., female litigator raising her voice to make a point is “overly aggressive,” while a male litigator doing the same thing is “zealously advocating for his client”; Female and male litigators engaging in the same conduct respectively deemed “emotional” and “passionate”).
- Assuming a woman in the conference/deposition/court room is a secretary, paralegal, etc., rather than an attorney, and treating them accordingly.
Sexist remarks are, obviously, one form of inappropriate gender-based conduct.
In Claypole v. County of Monterey, 14-cv-2730 (N.D. Cal. Jan. 12, 2016) (J. Grewal), the court observed (en route to awarding sanctions against a lawyer based on an inappropriate remark):
A sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common. The bigger issue is that [such] comments … reflect and reinforce the male-dominated attitude of our profession. A recent ABA report found that inappropriate or stereotypical comments towards women attorneys are among the more overt signifiers of the discrimination, both stated and implicit, that contributes to their underrepresentation in the legal field. When an attorney makes these kinds of comments, it reflects not only on the attorney’s lack of professionalism, but also tarnishes the image of the entire legal profession and disgraces our system of justice.
Here are some additional examples, culled from the case law:
- Laddcap Value Partners LP v. Lowenstein Sandler P.C., 2007 NY Slip Op 52538(U), 18 Misc3d 1130(A) (Sup. Ct. NY Cty. Dec. 5, 2007) (J. Edmead) (during deposition, male attorney referred to female opposing counsel as a “girl” and to her “cute little thing going on,” asked why she was not wearing her wedding ring, and called her “hon” (clarified to be “Hun,” as in Attila)).
- Principe v. Assay Partners, 154 Misc2d 702 (NY Sup. Ct. May 7, 1992) (awarding monetary sanctions based on male attorney’s inappropriate comments during deposition; comments included “tell that little mouse over there to pipe down” and “be quiet, little girl,” accompanied by “disparaging gestures;” court explained that “the words used here are a paradigm of rudeness, and condescend, disparage, and degrade a colleague upon the basis that she is female” and noted that “[t]he condemnation of such improper remarks springs from a growing recognition of the seriousness of gender bias and that bias of any kind cannot be permitted to find a safe haven in the practice of law or in the workings of the courts and the judiciary.”).
- In re Kahn, 791 N.Y.S.2d 36, 16 A.D.3d 7 (N.Y.A.D. 1 Dept. 2005) (suspending male attorney for 6 months; respondent, e.g., made sexually offensive comments to female opposing counsel (such as “do you want to suck one of my balls,” referring to peppermint candies) while conceding that he never made similar comments to men or judges; ignored a female attorney colleague’s repeated requests to refrain from using profanity in her presence; mocked a female attorney’s weight; and invited a female adversary to guess the bra size of a 14-year-old client).
- Matter of Warren M. Doolittle, 1985 WL 286211 (Comm’n on Judicial Conduct, June 13, 1985) (imposing the sanction of admonition on a Judge for, e.g., making “numerous improper comments to female attorneys, referring to their appearance and physical attributes” and suggesting “that female attorneys could get whatever they were asking of the court because of their physical appearance;” noting that “[t]he cajoling of women about their appearance or their temperament has come to signify differential treatment on the basis of sex,” that “such treatment is irrational and unjust and has abandoned the teasing once tolerated and now considered demeaning and offensive” and that such comments “are no longer considered complimentary or amusing, especially in a professional setting.”).
- Matter of Werner, NYLJ, Jan. 28, 1991, at 6, col 3 (EDNY 1991) (An attorney who, among other things, disparagingly called a Judge’s law clerk “young lady” was found to have “engaged in abusive and discourteous” conduct and publicly censured).
- Cruz-Aponte v. Caribbean Petroleum Corporation, 123 F.Sup.3d 276 (D. Puerto Rico Aug. 17, 2015) (imposing monetary sanction against a male attorney who said to a female attorney “You’re not getting menopause, I hope” in response to her saying that the deposition room was hot; the court concluded that the menopause comment was discriminatory and singled out the female attorney on the basis of gender and age and rejected the speaker’s claim that he made the comment “out of concern about [the female attorney]’s medical condition”).
- Claypole v. County of Monterey, 14-cv-2730 (N.D. Cal. Jan. 12, 2016) (Grewal, J.) (sanctioning male attorney who, during a deposition, told opposing female attorney “Don’t raise your voice at me. It’s not becoming of a woman;” sanction imposed: offending attorney ordered to donate $250 to the Women Lawyers Association of Los Angeles Foundation).
|↩1||I will not discuss gender discrimination arising in the course of an attorney’s employment. Such conduct, while implicating the laws prohibiting gender discrimination (e.g., Title VII, the Equal Pay Act, NY Labor Law 194, and the New York State and City Human Rights Laws), is beyond the scope of this post.|