“It’s Not Becoming Of A Woman” – Lawyer Sanctioned For Sexist Comment

A significant development within the legal profession is the subject of this post, and it is even, arguably, within the expansive remit of “employment discrimination.”

For those of us lucky (dumb?) enough to have practiced law to an old[er] age, the sight and sound of a judge condescending to a female lawyer, commenting leeringly on her looks or dress, or, worse, belittling, marginalizing or outright harassing her in front of a crowd of all-male lawyers, was fairly commonplace.

What was not commonplace was the sight of a female lawyer.

Boss, Executive, Businesswoman

Now, in an article in the Recorder written by Ross Todd, which I read in an ALM publication, we learn that a California federal judge has sanctioned a male lawyer for making a sexist comment to a female lawyer during a deposition.  Not a vulgar, threatening or harassing comment – but a sexist comment.

What did the lawyer say?

The judge found that “At a contentious deposition, when Plaintiffs’ counsel asked [the male lawyer] not to interrupt her, [he] told her, “Move on with your next question and don’t raise your voice at me. It’s not becoming of a woman or an attorney who is acting professionally under the rules of professional responsibility.”

The judge ruled that:

“One could defend some of [his] conduct as merely vigorous representation of his client, but [he] also has stooped to an indefensible attack on opposing counsel.”

“There are several obvious problems with his statement, but, most saliently, [he] endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys. A sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common. The bigger issue is that comments like [his] 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.”

“Sanctions may not fully compensate Plaintiffs’ counsel for [his] conduct, but they might deter it in the future.”

Remarkable.   Can anyone who has spent, well, a lot of years litigating and in trial practice imagine such a judicial order 40, 20 or even 10 years ago?  Perhaps a chuckle or a gentlemanly tut-tut “among us boys.”  But sanctions?

True, the male lawyer was found to be generally disruptive and obstreperous at the deposition, but sanctions — for sexism?  Remarkable.

The article noted that the female lawyer said that “based on conversations she’s had with lawyers across the country ‘this is something that almost every woman attorney has experienced again and again over their careers,” but that “many women don’t make an issue of comments like [the male lawyer’s] for fear of being labeled ‘whiners.’”

She said that “This is reflective of the usual course of business which needs to change.”

She’s right on all points, of course.  And compared to 40 years ago … we can, perhaps, call this progress — of a sort.  Women now comprise a fairly large percentage of the legal workforce — lawyers and judges — although not in the same percentage as to the population at large.

Judge, Man, Law, Person, Standing, Court

I recall back to first year law school when, in response to a professor prattling on about his Harvard Law class being the best and the brightest, a student raised her hand and objected that this could not have been so because Harvard, at the time of his study, admitted few women — if any.  The professor simply snickered and told the “little lady” to please take her seat.

So sanctions meted out by a court for sexism is progress — of a sort.

Who knows — maybe someday a sanctions order such as this one will be remarkable not simply for its imposition but for the lack of its necessity.

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]