The issue of gender equality in the justice system continues to be evolve, but is still relevant in the eyes of the bench, bar, paralegals and students, as is shown in a second discussion at UAA cosponsored by the Alaska Bar Association’s Gender Equality Section, the UAA Justice Center and the Women’s Studies Program.
A panel moderated by Alaska Supreme Court Justice Dana Fabe convened on campus in early November to identify and deconstruct stereotypes encountered in the legal profession. Panelists included: Marla Greenstein, Executive Director of the Alaska Commission on Judicial Conduct; Robert Bundy, partner with Dorsey & Whitney; Toni Jones, paralegal with Dorsey & Whitney; Steven Van Goor, bar counsel with the Alaska Bar Association; Pamela R. Kelley, Assistant Professor of Justice with UAA; and Echo Oliver, a UAA Justice major earning a paralegal certificate within her degree program.
The presentation began with a video clip demonstrating how the use of language reinforces stereotypes connoting inequality. The video, dating from the mid-1980s, showed scenes common in some panelists’ experiences—as they reported in a pre-screening. Here, the relative age of the panelist made an important difference in the experiences and reactions they reported.
One panelist, Toni Jones, recounted how early in her career she was implicitly but strongly discouraged from childbearing so long as she wanted or needed to keep working.“In my experience, once you were pregnant you could not continue working—or at least working for very long,” she said. “It just wasn’t part of our culture then.” The commercial world did not face discrimination claims under statutes in effect at the time. So forty years ago, according to Ms. Jones, women deferred childbearing, quit their jobs, or were fired.
Her recollections contrasted sharply with the experiences encountered by the youngest panelist. Echo Oliver, a UAA Justice major who served her paralegal internship at the U.S. Attorney’s office and now works there, described coworkers who are aware of the existence of rights against discrimination in the workplace. She described young women peers for whom taking a discrimination claim to a supervisor would be, to use Ms. Jones’ terms, “part of our culture.” The empowerment principle displayed over the passage of time, from 1960 to today, was illustrated in that exchange. Ms. Oliver and her female peers, she reports, are well aware that discrimination based on pregnancy or status as a parent is unlawful.
Yet gender equality, while requiring empowerment of the disadvantaged gender, is more than statutory changes and widespread knowledge of those changes and the resulting corresponding rights. Sensitivity to stereotyping is necessary before its connotations of inequality can be made plain.
Justice Fabe elicited examples from each panelist regarding how the use of stereotyping surfaced in her professional life. Examples included an instance in which counsel used titles (e.g., officer) for male witnesses, but omitted titles for female witnesses of the same rank. Another pointed out how corrective measures used to maintain control of counsel in court proceedings elicited complaints describing female judges as “shrill” and “unprofessional,” when the same measures taken under the same circumstances by men would have elicited no complaint.
The November presentation was the second this year. It was made primarily to an audience of Sociology students enrolled in “Men, Women & Change.” The earlier presentation was made primarily to an audience of Justice and Paralegal students enrolled in “Justice and Society.” The only panelists who participated in both presentations were Marla Greenstein and Steve Van Goor.
The presentations differed slightly. Ms. Greenstein, the executive director of the Alaska Commission on Judicial Conduct, noticed that there were both male and female students on the earlier panel. In her opinion, the balance made for more immediate experiences for the audience to consider and heightened their participation. In contrast, she described the November presentation as more focused on panel remarks than on the students’ input. During this presentation, a sense of historical movement toward gender equality was clearer—from the video depictions circa 1986, to the stories recounted by legal professionals with experiences over decades, to students beginning careers today.
As noted by panelist Robert Bundy, “The panel consisted of a wide variety of professionals, some with over 30 years dedicated to working on improvements to and issues of equality within our profession and the legal system.”
Students asked questions that clearly challenged the panel’s conception of gender equality in the legal system. One student simply asked: What approach has the legal profession taken to gender equality for gay, lesbian and transgendered participants in the system? The long pause revealed that “gender equality” had been discussed by the panel as though “gender equality” was synonymous with “equality of the sexes.”
Steven J. Van Goor, Bar Counsel for the Alaska Bar Association, pointed out that the American Bar Association’s Ethics 2000 Amendments to the Model Rules of Professional Conduct may be an early signal that lawyer misconduct by definition is being broadened to encompass bias based on sexual or gender orientation. Changes in the comments to the rule may be an indication that gender equality as more expansively defined has made inroads with the professional bar associations.
Rule 8.4 in the Ethics 2000 Amendments to the Model Rules adds the following language:
It is professional misconduct for a lawyer to: . . . (d) engage in conduct that is prejudicial to the administration of justice.
The Official Comment to the Amended Rule provides:
A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule. (Model Rules of Professional Conduct Rule 8.4 cmt . 4, 2000)
The work of the Alaska Bar Association’s Gender Equality task force will continue.
Pamela Kelley is an Assistant Professor with the Justice Center.