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Stephen R. Eckley's Article on Gender Bias

May 25, 2018

Belin Attorney and Iowa State Bar Association President Stephen R. Eckley has written an article on gender bias which was published in the April edition of The Iowa Lawyer Magazine.  Below is the full article.

 

I HAVE BEEN WARNED NOT TO WRITE THIS LETTER

STEPHEN R. ECKLEY

THE IOWA LAWYER 5 APRIL 2018

The risk of misstep is too great. Voices more articulate than mine have been misinterpreted and caused unintended offense. And, frankly, I feel inadequate to fully understand the issues because I see them through a prism colored by experiences from a different time. But there is no question the topic should be important to all Iowa lawyers. We need to talk about it. Progress depends on awareness. So it is with singular trepidation that I address gender bias in the legal profession.

In the aftermath of a flood of sexual  assault and harassment allegations against top Hollywood producer Harvey Weinstein, women who have suffered sexual abuse have been encouraged to write "Me Too" in social media posts. The #MeToo campaign has resulted in millions of posts by women spanning diverse industries and given thousands the courage to share their experiences publicly. So far, media attention has focused on revelations involving entertainers, politicians, journalists, athletes and high-profile individuals connected to Silicon Valley. Where do lawyers fit in all this?

Despite the fact that ours is a business still dominated by older men, there have been relatively few reported sexual harassment claims filed against lawyers or law firms. Perhaps the floodgates will soon burst, as in other sectors, but thus far that has not appened. Is it because we are different? Maybe. I have no doubt that the great majority of lawyers hold themselves to very high standards of integrity. And certainly we are better-positioned to know legal boundaries and the potential consequences of their violation. Awareness by male attorneys of the unique capability of female attorneys to strike back might further explain the low rate of lawsuits. I hope it is not the flip side—that women in the law are under even greater pressure to suffer silently than women in other occupations.

But before we pat ourselves on the back or conclude the MeToo movement is someone else’s issue, consider the response of our own members to this recent ISBA survey question: “In the past five years, have you experienced or witnessed behavior that you felt demonstrated harassment or discrimination on the basis of gender, or other forms of gender bias, in the practice of law?” Of 305 respondents, 84 percent of women attorneys answered yes, they had experienced or seen gender bias. 84 percent!

Is this high percentage inconsistent with the scarcity of lawsuits involving the legal profession? Not necessarily. At risk of sharing Matt Damon’s ignominy, there is a difference between gender bias broadly defined and “sexual harassment” legally defined. It seems we male lawyers do a poor job of treating our female peers equally, even if we generally stop short of actionable sexual harassment.

But 84 percent? Regardless of how broadly one defines sex-based bias, how can the number be so high? The comments of the ISBA survey respondents are revealing. Over and over, they describe not overt sexual harassment but subtle forms of sex-based bias, such as condescension, interruptions, dismissive comments, remarks about appearance, less meaningful work assignments or attempts to intimidate. These are small events that tend to be fleeting, covert and hard to prove, that are often unintentional and unrecognized by the perpetrator, and that typically occur when someone is perceived to be in the minority.

I hope you are not thinking that’s part of life and women lawyers just need to toughen up. If you take anything from reading this letter, let it be this: These subtle forms of gender bias, repeated many times over long periods by many male lawyers, have serious cumulative, harmful effects and are every bit as damaging to women attorneys as actionable sexual harassment. Every male lawyer, including this one, should keep in mind the disappointment, frustration, stress and anger women lawyers must hold inside because of our collective failure to make them feel welcome and to provide them equal opportunities to demonstrate their value. The result is that too many are discouraged from seeking to advance in, or even remain part of, our profession.

We need to do better. Awareness is our first challenge. The same ISBA survey question—have you experienced or witnessed gender bias?—to which 84 percent of women answered yes, only 34 percent of males answered yes. In other words, 84 percent of women attorneys reported experiencing or seeing something that 2/3 of male attorneys were unaware of (or did not acknowledge). I think the explanation is that we don’t realize what we’re doing. We fail to see that our conduct is perceived by women to be demeaning. Yet women attorneys shouldn’t be expected to speak up when we transgress. They know that to do so would only make it harder for them to win the acceptance they deserve, and could invite retaliation.

Our second challenge is to avoid the subtle inequities that are so pervasive and pernicious. Lawyers, judges and mediators must all strive to make sure we and others stop engaging in such conduct as:

• Interrupting women attorneys

• Talking or listening more to the men in the room

• Showing signs of dismissiveness—looking away, rolling the eyes or checking cell phone messages—when a woman is speaking

• Excluding women lawyers from our social interactions with other lawyers, judges or clients

• Referring to women by their first name rather than “Ms.” while addressing male lawyers as “Mr.”

• Giving credit to men but not to women when equal recognition is deserved

• Assigning less rewarding or challenging responsibilities to women lawyers

• Commenting on appearance

• Ignoring emails from women

• Stereotyping that female attorneys think differently than male attorneys

• Failing to recognize that women lawyers have earned their seat at the table

I appeal to the great majority of Iowa lawyers who strive to do what is right and fair: We can do this. It shouldn’t be that hard. If we join together, persistent effort from each of us will bring about transformative change that is long overdue.

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