Sex on the docket: reports of state task forces on gender bias.
However, since the early 1980s, 39 states, the District of Columbia, and nine of the 13 federal circuits have established task forces on gender bias in the judiciary. Charged with investigating gender bias, documenting its existence, issuing recommendations to eliminate it, and creating organizations and processes to oversee Its destruction, the task forces have produced an extraordinary series of reports that are taking a toll on gender bias in its myriad forms. Thirty-four final reports and many implementation and follow-up reports are now in print.
This article is based on an examination of the 34 final state reports and numerous related documents (see Appendix). We describe and summarize the origins of the gender bias movement and the content of the reports, including methodology, findings and recommendations, and efforts to implement change. We conclude with a discussion of the reports' implications. As a collection, the reports present a rich source of empirical and anecdotal data and afford a unique opportunity to examine gender bias in a once-neglected yet critically important public administration setting.
Origins of the Gender Bias Movement
Historically, women were excluded from making, interpreting, studying, and practicing the law. As recently as the early 1970s, women comprised only 15 percent of attorneys and 4 percent of judges. Sexual bias in the practice and administration of the law and against women as lawyers, litigants, and court employees was pervasive. As women entered the legal profession in much greater numbers, they began sharing their experiences--both formally and informally--in conferences, workshops, professional meetings, and conversations. Empirical studies of gender bias began appearing in scholarly and legal research. Fragmented activities coalesced in 1980, when the NOW Legal Defense and Education Fund and the newly-formed National Association of Women Judges created the National Judicial Education Program to Promote Equality for Women and Men in the Courts (NJEP), with the purpose of educating the judiciary on gender bias. NJEP efforts were quickly endorsed by several prominent judicial organizations.
NJEP activities encountered a substantial amount of disbelief, denial, and resistance. It became apparent that the attack on gender bias would require concrete data and evidence from the states (Wikler, 1990). New Jersey took the lead in elevating gender bias from obscurity to prominence with a presentation to state judges in 1982, followed by publication of the first gender bias task force report in 1983. New York, Rhode Island, and Arizona established task forces the next year, followed by Massachusetts and Utah in 1986. The topic of gender bias in the courts won a spot on the educational program of the Conference of Chief Justices in 1986. Two years later, the Conference adopted a resolution urging each state chief justice to establish a gender bias task force. Nine additional states appointed task forces in 1989. As of January 1996, only Alabama, Mississippi, Oklahoma, Oregon, Pennsylvania, South Carolina, and Wyoming had failed to climb on the bandwagon.
Even a brief scan of a handful of the reports leads to the ineluctable conclusion that the state task forces benefited from cross pollination. Despite significant state differences in task force composition, court organization and processes, partisan make-up, political culture, and other distinctions, the methodology, findings, and recommendations are strikingly similar. One is left with a clear conviction that gender bias, in the words of the New York Task Force on Women in the Courts, is "a pervasive problem with grave consequences," and that it permeates the decision making, operations, and environment of state court systems.
Methodology of the Task Forces
The task forces were initiated by a variety of state institutions and organizations, including the supreme court, judicial council, and bar association. The task forces were actually established by the state supreme court or judicial council in all but eight states, where the bar association was primarily responsible. The leading role of the supreme courts has ensured the seriousness and credibility of the task forces' work for the primary audiences: judges and attorneys.
The task forces have ranged in size from eight members for an exploratory working group in Alaska to 125 in Ohio (streamlined by a 30-member steering committee). The average size is 28. Most states have formed task forces into several subcommittees to address specific aspects of bias. Most of the membership has been taken from the legal profession: judges, attorneys, court administrators, law school deans, and professors. Others include social scientists, legislators, law enforcement representatives, newspaper editors, community leaders, and other citizens. Subsequent committees formed to implement task force recommendations have been much smaller, and dominated by legal professionals. Most task forces took one and one-half to two years to complete their work and submit a final report.
As noted, the task forces were charged with determining if gender bias exists in the state judicial systems and, if so, to determine its nature and extent and to propose remedies for reducing or eliminating it. Gender bias was defined differently in the states, but most definitions captured the same essential meaning as Connecticut's: "Any unjustified differential treatment of a man or woman based on that person's gender." Specific areas of concern have been courtroom interactions between litigants, attorneys, judges, witnesses, and others; domestic relations and child custody and support; domestic violence; criminal justice; juvenile justice; access to the courts; gender-based language in the courtroom and in state law; court administration; and bias in the legal profession (see Table 1). The scope and methodology of task force investigations have been constrained by the size of their budgets. Some task forces (e.g., Arizona, Maryland) have operated on the proverbial shoestring, relying on in-kind services from the bar association and state government. Others (e.g., New Jersey, Florida, Massachusetts) have enjoyed generous financial and staff assistance from a variety of sources, including the state judicial branch, bar association, and private and nonprofit organizations.
Table 1 Contents of Task Force Reports State Court Domestic Domestic Civil Criminal Treatment Relations Violence AK AZ(1) AR(1) CA [check] [check] [check] [check] [check] CO [check] [check] [check] [check] [check] CT(2) [check] [check] [check] [check] [check] DE [check] [check] [check] FL [check] [check] [check] [check] GA [check] [check] [check] [check] HI(3) [check] [check] [check] [check] [check] ID(3) [check] [check] [check] [check] IL [check] [check] [check] [check] [check] IN(1) IA [check] [check] [check] [check] [check] KS(1) [check] KY [check] [check] [check] [check] [check] LA [check] [check] [check] [check] [check] ME MD(2) [check] [check] [check] MA [check] [check] [check] [check] [check] MI [check] [check] [check] [check] MN [check] [check] [check] [check] [check] MO [check] [check] [check] [check] MT NE [check] [check] [check] [check] [check] NV [check] [check] [check] NH(1) [check] [check] [check] NJ [check] [check] [check] [check] NM(1) [check] [check] [check] [check] [check] NY(2) [check] [check] [check] [check] NC(1) ND OH [check] [check] [check] RI [check] [check] [check] [check] [check] SD(1) TX [check] [check] [check] [check] UT [check] [check] [check] VT [check] [check] [check] [check] [check] VA(2) WA [check] [check] [check] [check] WV WI [check] [check] [check] [check] [check] State Juvenile Court Profession Final Administration Report AK Pending AZ(1) Pending AR(1) [check] 1992 CA [check] [check] 1990 CO [check] 1990 CT(2) [check] [check] 1991 DE [check] [check] 1995 FL [check] [check] 1990 GA [check] [check] 1991 HI(3) [check] [check] 1989 ID(3) 1992 IL [check] 1990 IN(1) [check] 1990 IA [check] [check] 1993 KS(1) [check] 1992 KY [check] [check] [check] 1992 LA 1992 ME Pending MD(2) [check] 1989 MA [check] [check] 1989 MI [check] [check] 1989 MN [check] [check] 1989 MO [check] [check] 1993 MT Pending NE [check] 1994 NV 1988 NH(1) [check] 1987 NJ [check] 82/83 NM(1) [check] 1991 NY(2) [check] [check] 1986 NC(1) [check] 1995 ND Pending OH [check] 1995 RI [check] 1987 SD(1) Pending TX [check] [check] [check] 1994 UT [check] 1989 VT [check] 1991 VA(2) Pending WA [check] 1989 WV Pending WI [check] 1991
(1) Indicates study conducted by state bar association.
(2) Indicates studies conducted by both task force and bar association.
(3) Indicates study that predominately is derived from review of other state reports rather than state specific data collection.
Court Treatment encompasses courthouse interactions of all types, involving attorneys, litigants, witnesses, and jurors. It generally includes more generic than those associated with a specific subject matter.
Domestic Relations includes divorce, alimony, support, custody, and visitation. It frequency focuses on economic consequences of divorce, and issues of access to the courts.
Domestic Violence includes restraining and/or protective orders, access to the courts, and problems of proof.
Civil is a general category for issues not coveted elsewhere, including studies of damages (e.g. valuation of homemaker services).
Criminal generally addresses sentencing, sexual assault, and, if not separately covered, domestic violence.
Juvenile refers to both sentencing and differences in available placements.
Court Administration covers personnel, pay equity, sex discrimination and harassment, and family leave.
Profession refers to women in the profession distinct from courthouse activities, such as opportunities for women in the practice of law and judicial selection.
Final indicates year final report issued; pending is as of February 1996.
The most common data collection methods have been mail and telephone surveys of judges, attorneys, litigants, and law students; public hearings; regional meetings with women attorneys, court employees, and the general public; personal interviews of judges, attorneys, and court personnel; reviews of court records and statutes; and statistical analyses of sentencing patterns, compensation of court employees, and other data. Published reports of earlier task forces have been required reading for task force members. Indeed, two states (Hawaii and Idaho) essentially dispensed with the need to conduct their own data collection and instead commenced with the assumption that gender bias exists and should be addressed.
The remarkable similarity of approach is apparent not only in data collection techniques but also in the use of many identical survey questions, and, ultimately, the commonality of findings. The task force movement represents a triumph of interstate networking within the legal profession. In addition to national professional conferences promoting the gender bias studies, there was widespread distribution of practical, how-to-do-it manuals, guidelines, and reports on the task force approach. Task force reports, once published, were widely disseminated throughout the states. Much of the coordination and networking was orchestrated by Lynn Hecht Schafran, the director of NJEP and official or unofficial consultant to most if not all of the task forces.
A number of questions may be raised concerning the research techniques employed in specific states. For example, survey response rates vary widely, from 25 percent of attorneys in Rhode Island to nearly 72 percent in New Hampshire (response rates for judges tend to run higher). And some states use qualitative research methods that appear to be, at best, untutored. The critical question that arises, of course, is whether the common methodology and extensive networking have predetermined the findings. Notwithstanding certain conformities, there are sufficient differences in task force approaches to provide a high degree of confidence in the validity of the overall findings. Moreover, to promote reliability, it is generally advantageous to ask identically-worded questions of similar sets of respondents. Taken together, the task force findings are compelling and convincing; any reasonable person would conclude that gender bias is a pervasive, multi-dimensional problem in the courts.
The Findings and Recommendations
There are two general categories of findings: (1) gender bias in the courtroom and under the law, and (2) gender bias in court administration and the legal profession.
In the Courtroom and Under the Law
Judges and attorneys treat women and men differently in the courtroom. A common form of gender bias documented by task forces has to do with terms of address. Male attorneys, for example, are typically addressed as "counselor" or "Mister", while female attorneys sometimes are called by first names or "young lady", or by terms of endearment such as "honey" or "dear."
Task forces found that judges, who are overwhelmingly male, tend to treat women attorneys and witnesses dismissively and with less tolerance than they do men. Aggressive behavior by a male attorney may be rewarded, while similar behavior by a woman may be chastised. Verbal sexual harassment of female attorneys by judges and especially by male attorneys is widely reported. Such harassment includes suggestive comments, touching, sexually offensive jokes, and sexual comments on women's physical traits and appearance. According to a female attorney in Texas, "I've been patted on the head, endured condescending inquiries about whether I was having a bad hair day, broken fingernail day or a run in my stockings when my mood was less than perky. I have had judges stroke my hair and caress my shoulders as we discuss the upcoming docket." A Vermont judge told an attorney that she was "too pregnant to prosecute."
Much of this biased behavior is unconscious, unrecognized by men, and not malicious, but it diminishes women's credibility as lawyers in the eyes of judges, jurors, peers, and their clients. In other instances, male lawyers simply consider their sexist words and actions behavior to be just another litigation tactic. But some reported behavior in the courtroom rises above boorishness and aggressive representation of clients to approach clear and intentional harassment. Another attorney in Texas related how a male judge publically asked her the color of her nipples. The Missouri task force report noted incidents in which judges sexually harassed women litigants and court employees.
As has been found in other research on gender discrimination and sexual harassment, male and female perceptions of the existence and frequency of these events are highly divergent. What many men may consider flattery or gentle teasing may strike women as unnecessarily calling attention to their sex. Interestingly, several reports (e.g., Texas, New Jersey) include data and anecdotes from male attorneys who claim that their female counterparts often receive favorable treatment in the courtroom from male judges, particularly if they are young and attractive.
Men are also discriminated against under the law. For example, men continue to be found less suitable as custodians of their children than women in many states. Task force reports duly take note of such forms of gender bias against men.
But it is apparent that women are discriminated against under the law in many more venues. No-fault divorce has worked to the great financial advantage of men while contributing significantly to the feminization of poverty. The task forces that studied this issue found widespread misunderstandings about the economic consequences of divorce for women. For instance, task force reports from Colorado, Florida, and Rhode Island indicate that while a wife's post-divorce net worth is slightly larger than her spouses' net worth, her income is only one-half as great. After four years her net worth declines significantly while that of her former husband increases. Alimony awards are inconsistent and sometimes patently unfair to one of the parties. Child support is not enforced uniformly throughout the states. And wives, as the financially-weaker party in most divorces, are disadvantaged in gaining proper legal representation. Finally, as the California, Florida, and Utah reports show, most male judges dislike hearing family matters and tend to give such them low priority and minimal attention. This bias tends to reinforce stereotypes (such as the undervaluation of the economic value of homemaking) and works to the disadvantage of women.
Domestic violence was a major topic in nearly all of the reports, which conclude, not surprisingly, that women are overwhelmingly the victims. They also find that domestic violence, despite its devastating physical and emotional effects on women and children, is not treated as a crime in many judicial settings. According to the Maryland task force, "Too often judges and court employees deny the victim's experiences, accuse the victim of lying about her injuries, treat the cases as trivial and unimportant, blame the victim for getting beaten, and badger the victim for not leaving the batterer." Sentences for perpetrators of domestic violence tend to be lighter than for other forms of battery. The Utah report finds that such treatment discourages victims from filing domestic abuse cases.
Sexual assault victims are also treated badly enough to discourage them from reporting the event, particularly if the attacker is known by the victim. In Minnesota, Wisconsin, and other states victims are often judged harshly in the courtroom on their appearance, demeanor, lifestyle, and reputation while defendants escape similar scrutiny. Florida's task force found that there is a "general belief that there actually are two kinds of rapes--`real' rapes and rapes somehow prompted by the victim," depending on such factors as the victim's virtuosity and physical wounds. In a real sense, the victim herself is placed on trial.
Several task forces examined women as criminal defendants. Reports indicate that men and women tend to commit different types of criminal offenses. For example, men are more likely to be perpetrators of violent crime, while women tend to commit economic crimes. The conventional wisdom that men receive less favorable treatment in sentencing is supported in Texas but debunked in the reports of Minnesota, Maryland, and several other states, which point out the importance of mitigating or aggravating circumstances in many cases, such as child care responsibilities for women or prior criminal records for men. Once in the corrections system, according to several reports, women have fewer opportunities for rehabilitative and treatment services.
Juveniles are treated differentially by gender. Boys tend to receive more lenient treatment than girls, who, as observed in the Kentucky report, "are institutionalized more often and for longer periods of time than male juveniles." However, fewer facilities and counseling programs are available for girls.
In Court Administration and the Legal Profession
Gender bias in court personnel systems is rampant and multi-faceted. Acute occupational segregation is documented in most states. Rhode Island found that 95 percent of female court employees were in the lowest seven pay grades and none were in the top seven. Men dominate key administrative positions throughout the court system, while women are clustered in clerical jobs. Occupational segregation is tied directly to pay differentials between male and female employees and to problems of comparable worth, which are documented by pay equity studies in several states. Women also generally perceive their promotional opportunities to be more limited than men's.
In general, court personnel policies and procedures are inadequate. As Utah's report noted, there are also problems with implementation, where "informal practices contradict written policies and control hiring and promotion decisions, disadvantaging women applicants...(and) are exacerbated by a lack of accountability for personnel decisions." Most states reported that the courts had not developed equal employment opportunity or affirmative action policies to address these issues. Compounding personnel policy problems in many states is a confusing mosaic of personnel systems. In California, for example, judges may appoint certain employees who serve "at will", exempt from civil service regulations. Other court employees are part of the state civil service. County clerks may hire workers through county personnel departments. Interpretors and court reporters may be independent contractors.
Inappropriate gender-related conduct is widely observed in most court environments, characterized by insensitive comments by attorneys, judges, and supervisors to women court employees, use of terms of endearment, and occasional sexual harassment. As in the courtroom, offensive jokes, unwanted physical contact, and demeaning sexual remarks are not uncommon. In Minnesota, 25 percent of female court employees indicated they were "always, sometimes, or often" victims of verbal or physical sexual harassment by attorneys. Michigan found that many courts did not have sexual harassment policies.
The courts have been slow to adopt modern employee benefit packages that meet the special needs of women as primary care givers. Parental leave, flextime, child-care facilities, and part-time work opportunities are rare. The absence of family-friendly policies also discriminates against fathers, of course, and men may be victims of discrimination even where family leave policies exist. In Maryland, for example, men were found to be less likely to be granted family or parental care leave than women.
Women in 1994 made up 43 percent of law school admissions. But, according to every report, women continue to be discriminated against in the legal profession from the moment they enter law school. In the classroom, female students are subjected to stereotyping, teasing, and a presumption by some professors and fellow students that women are not suited for practicing law. A Louisiana attorney testified that a professor addressed her each day in class with a hypothetical case beginning "Ms. So and So, suppose you flunk out of law school and take a job as a legal secretary...." Women report bias against them in the hiring and promotions practices of law firms, the operations of bar associations, and as noted above, in courtroom interactions with judges and other attorneys. Women also make significantly less money than men, according to New Hampshire, New York, and several other states that conducted comparable worth studies on attorneys.
After concluding that gender bias is a serious problem in the state court systems, the task forces then issued recommendations to judges, court administrators, attorneys, law schools, legislators, and others for erasing it. The need for continuing education and training of judges, attorneys, and court personnel permeates the recommendations, and runs the gamut from general issues such as the economic position of women in society to specific problems such as the battered woman syndrome. Such an approach is especially important with respect to judges, who function independently and generally without supervision, and who may interpret any suggestion of bias in their courtroom as a threat to their professionalism. Procedural changes to promote gender equity and sensitivity were also recommended for court administrators, judges, bar associations, prosecutors, law enforcement agencies and others. Most reports called for substantive changes in the law and reform in personnel procedures, along with further research and study.
Impacts of the Task Force Movement
Although implementation of task force recommendations is variable, in all the task-force states gender fairness has been elevated from a quiet issue to an important professional norm. The reports, with perhaps two or three exceptions, have not been shelved and forgotten. They have been widely disseminated to the news media, bar associations, law schools, and general public. Chief justices, bar associations, and court administrators offices have established implementation committees, which have responded with activities intended to root out gender bias and eliminate it. Many states have issued progress reports and conducted follow-up surveys.
In Massachusetts, Florida, and Kentucky, and many other states handbooks have been written on how to avoid various types of gender bias. Judicial education programs have been introduced in Washington, Maryland, Minnesota, and at least 23 other states. The goal is to institutionalize change by integrating gender bias issues into all appropriate curriculum elements. Sexual harassment policies have been adopted by the court systems in Alaska, Idaho, and other states and gender bias complaint procedures have been adopted or revised in 16 states. Other personnel policies and procedures have been overhauled in at least 14 states. Family-friendly policies are increasingly available to court personnel and witnesses. There have been gender-fairness changes in codes of judicial conduct, canons of judicial ethics, and codes of professional responsibility. Gender-biased language has been eradicated from statutes and court documents. In at least five states, "court watching programs" keep an eye out for gender bias in court proceedings.
Legislation has been enacted in several states to implement task force recommendations. New child custody laws are on the books in Florida and Minnesota, domestic violence laws have been passed in Maryland and New York, and divorce reform is in place in Rhode Island. Performance evaluation of judges is increasingly in use in the state and local courts.
The most important single change attributed to the task force movement has to do with the climate within the judicial system. In most places, both men and women are more aware of gender bias in the courts and in the legal profession, and they are less tolerant of it (Wikler, 1989). Blatant sexism and sexual harassment have diminished.
Needless to say, gender bias in its many forms has not been eradicated in the courts or in the legal profession. Progress remains elusive in states that have been unwilling or unable to fund implementation studies. Comparable worth continues to be a particularly difficult issue both in the profession and for the courts as employers. But the gender bias task force movement, as documented in these reports, is remarkable in its scope, comprehensiveness, and impact. And it is unique in that it represents a serious self-examination on a sensitive issue by a conservative political institution and a powerful profession, heretofore known for their determined resistance to change.
Wikler, Norma J., 1989. "water on Stone A Perspective on the Movement to Eliminate Gender Bias in the courts." 26 Court Review 3 (Fall), 6-13.
RELATED ARTICLE: State Task Force Reports
Achieving Equal Justice for Women and Men in the Courts: The Draft Report
of the judicial Council Advisory Committee on Gender Bias in the Courts
Report of the Judicial Council Subcommittee on Gender Bias in the Courts
Evaluation, List of Modified Recommendations, and Comments (1991)
Gender and Justice in the Colorado Courts-Final Report of the Colorado
Supreme Court Task Force on Gender Bias in the Courts (1990)
Report of the Connecticut Task Force on Gender, Justice and the Courts (1991)
Report of the Florida Supreme Court Gender Bias Study Commission (1990)
Gender and Justice in the Court A Report to the Supreme Court of Georgia by
the Commission on Gender
Bias in the Judicial, System (1989)
Achieving Gender Fairness Designing a Plan to address Gender Bias in
Legal System--Report of the Ad Hoc Committee on Gender Bias (1989)
Report of the Fairness and Equality Committee of the Supreme Court of Idaho
The 1990 Report of the Illinois Task Force on Gender Bias in the Courts
Final Report of the Equality in the Courts Task Force (1993)
Kentucky Task Force on Gender Fairness: Equal Justice for Women and Men
Louisiana Task Force on Women in the Courts: Final Report 1992 (1992)
Gender Bias in the Courts: Report of the Special Joint Committee on Gender
Bias in the Courts (1989)
Report of the Gender Bias Study of the Supreme Judicial Court (1989)
Final Report of the Michigan Supreme Court Task Force on Gender Issues in the
Minnesota Supreme Court Task Force for Gender Fairness in the Courts Final
Report of the Missouri Task Force on Gender and Justice (1993)
Justice for Women: First Report of the Nevada Supreme Court Task Force on
Gender Bias in the Courts (1988)
First Year Report of the New Jersey Supreme Court Task Force on Women in the
Second Report of the New Jersey Supreme Court Task Force on Women in the
Report of the New York Task Force on Women in the Courts (1986)
Final Report of the Rhode Island Committee on Women in the Courts (1986)
The Gender Bias Task Force of Texas Final Report (1994)
Utah Task Force on Gender and Justice Report to the Utah Judicial Council
Gender and Justice: Report of the Vermont Task Force on Gender Bias in the
Legal System (1991)
Final Report of the Washington State Task Force on Gender and Justice in the
Final Report of the Wisconsin Equal Justice Task Force (1991)
Richard C. Kearney is professor of political science and director of the Master of Public Affairs Program at the University of Connecticut, Storrs. He has published widely in the fields of Public personnel administration, labor relations, and state and local politics.
Holly Sellers is a recent MPA graduate from the University of Connecticut, where she is presently a doctoral student in political science. She was formerly counsel for the Connecticut Chief Court Administrator and staffed that State's Task Force on Gender, Justice, and the Courts.
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|Author:||Kearney, Richard C.; Sellers, Holly|
|Publication:||Public Administration Review|
|Date:||Nov 1, 1996|
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