Today’s confirmation of Elena Kagan as the fourth woman ever to serve on the U.S. Supreme Court is a milestone worth celebrating. For ladies in the law, things are looking up.

But female law students and lawyers still have complaints. Check out a recent query submitted to the Dear Prudence advice column over at Slate, by a correspondent calling herself “Livid but Lost Law Student”:

I am a female law student who is employed for the summer (and potentially for the school year) at a small firm that I’m really enjoying. The law office shares a floor of an office building with a bigger law firm, and my cubicle is “on the border.”

All of the attorneys at both firms are male, but at the other firm, the men are far from politically correct. I have two issues….

Let’s explore this law student’s “issues,” shall we?

Livid but Lost Law Student (hereinafter “Livid”) continues:

First, one of the attorneys, “Jerry,” often makes comments to me about my appearance. These range from annoying but harmless (“Nice tan”) to creepy (“I like that skirt,” in a lecherous tone). I have tried to ignore him or subtly indicate his comments aren’t welcome, but neither approach has worked. I’m tempted to speak to one of my firm’s partners, but I fear it would make me look like a little girl running to a man to fight my battles. I’m also considering documenting all his comments until I have enough for a sexual harassment suit so I can make his firm pay for the legal education I used to nail it.

Study question (maybe for those of you who just took the bar exam): Can Livid file a sexual harassment suit against Jerry and his law firm even if she doesn’t work at that firm, but simply shares office space with them?

Second, I overhear a lot of conversations I find highly offensive. The men are fond of using homosexuality-based insults, calling one another or opponents “fag” and “homo.” The work environment is becoming so unpleasant that I wonder how long I can stand it. What should I do?

My pragmatic take (perhaps similar to what Randy “The Ethicist” Cohen might say): ask for a new cubicle located away from “the border” with Uncouth & Boorish LLP. Then you won’t have to overhear their unpleasant epithets. If “Jerry” wants to ogle you, he’ll have to make a special trip.

I was pleasantly surprised by Prudence’s somewhat harsh response to Livid. Here’s an excerpt:

I hope you don’t view your law degree as a carte blanche to take to court everyone who makes you uncomfortable. If you tell a judge that getting the compliment “I like that skirt” made you unable to discharge your own legal duties, the conclusion may be that you need to find another line of work, not that the firm of Blowhard, Homophobe & Creep owes you a tuition check.

Prudence suggests that Livid fend off Jerry by giving him a piece of her mind. With respect to the droppers of the f-bomb, Prudie advises:

As for the frat boys next door — get a sound-blocking headset if you must. Yes, their comments are repugnant, but you don’t want to be the Carrie Nation of your floor.

Read the full exchange here (second item).

This discussion raises a larger question: Do female lawyers and law students need to get thicker skins?

If workplace complaints from women lawyers focus these days on uncouth remarks by men, perhaps it’s because the worst of sexism is in the past. The days when Sandra Day O’Connor couldn’t find a job as a lawyer but only as a legal secretary, despite graduating near the top of her class at Stanford Law School, are ancient history. Now women with credentials like O’Connor’s are eagerly courted by the nation’s top law firms. Women make partner with regularity in Biglaw, and many have risen to become managing partner.

Being a woman is arguably more of an asset than a liability within the law today. So far, President Obama has picked only women for the Supreme Court. And let’s face it: the SCOTUS candidacies of Sonia Sotomayor and Elena Kagan were significantly aided by their gender (as well as their excellent credentials).

Men might pat the butts of their women colleagues on “Mad Men,” but men don’t do this in most legal workplaces in the year 2010. When this kind of egregious conduct takes place, the perpetrators get fired — or even sent to jail. See, e.g., Judge Samuel Kent.

Of course, even if they pale in comparison to the gender discrimination of the past, leering comments from male colleagues can still be unpleasant. How should women respond?

Judge Maryanne Trump Barry and her younger brother, Donald Trump

Let’s hop into the Above the Law time machine and go back to 1992. There was just one woman on the Supreme Court, Justice O’Connor, and many fewer women on the lower courts. Things were much more difficult then for female lawyers and judges.

And yet one prominent female jurist, Judge Maryanne Trump Barry — at the time a district judge in New Jersey, now on the Third Circuit, and the older sister of The Donald — essentially told women to, well, get a grip on themselves. As reported by David Margolick in the New York Times, here is what Judge Barry had to say at a November 1992 conference for women in law enforcement:

Judge Barry said that undue sensitivity and an excessively confrontational attitude of some women in the work place was poisoning relations between the sexes. Because of a few “professional hypochondriacs,” she said, good and well-meaning men are afraid to be themselves, and the more serious problems women face in the work force remain unaddressed.

“I stand second to none in condemning sexual harassment of women,” she told the Interagency Committee on Women in Law Enforcement. “But what is happening is that every sexy joke of long ago, every flirtation, is being recalled by some women and revised and re-evaluated as sexual harassment. Many of these accusations are, in anybody’s book, frivolous.”

Amen, Your Honor! Not every male’s compliment to a female colleague — e.g., Jerry telling Livid that he likes her skirt — is problematic. (I constantly compliment Kash on her fashion, and she thanks me for the praise.)

There are other consequences of female hypersensitivity, according to Judge Barry:

Making a big deal out of slight slights, she argues, not only angers men needlessly but trivializes the serious problems women face in advancing in the predominantly macho male world of law enforcement.

It has also made work less fun, she said. “Frivolous accusations reduce, if not eliminate, not only communication between men and women but any kind of playfulness and banter,” she said. “Where has the laughter gone?”

Let’s face it: sex is funny. And if you’re going to take human sexuality off the table entirely as a topic of conversation, offices are going to become a lot less fun.

Before you condemn Judge Barry, ask yourself: Do you have her street cred as a female pioneer in the law?

Judge Barry, a 1958 graduate of Mount Holyoke College who earned a law degree at Hofstra University 16 years later, described herself to the group as a “traditional woman” — someone who married and reared a son before entering law practice at the age of 37….

Judge Barry did not address whether she had been sexually harassed herself, but she well knows the disconcerting feeling of wearing the only blouse in a sea of men’s suits. When she became a Federal prosecutor in Newark in 1974, she constituted half the women in a 62-lawyer office. She stayed there for the next nine years, becoming chief of the appeals division.

Oh, so you don’t actually know what it’s like to be one of two women in a 62-lawyer office? I didn’t think so.

Livid but Lost Law Student would do well to heed this advice from Judge Barry on how to deal with rude comments from men:

“Instead of throwing down the gauntlet at every opportunity,” she said, “may I recommend the use of humor and gentle sarcasm — the deft touch, the intelligent approach — rather than the atom bomb?” That, she said, could consist simply of asking a man why he was such a jerk or had yet to grow up.

And, though she acknowledged it was heresy, she recommended for women the strategic use of their own sexuality.

“There is no more potent weapon in any profession than a woman with a feminine exterior and a will of steel, and I defy you to find one man who will disagree.”

This man certainly doesn’t! That last line, about “a woman with a feminine exterior and a will of steel,” is nothing short of delicious. Judge Barry, will you marry me?

(Okay, maybe not — but would you like to be the #1 Gay Icon of the Federal Judiciary? Feel free to claim your crown by email.)

Above the Law readers: What are your thoughts? Do women in the law overreact to edgy comments from their male colleagues? Or are men just disgusting pigs? (Or both?)

And do you agree with Judge Barry’s advice that professional women should use their attractiveness and feminine wiles to advance their careers? Or do you think that women need to be just like men in order to succeed in the male-dominated field of law?

P.S. For more about Judge Barry and her controversial views, read Margolick’s complete article.

Livid but Lost Law Student [Slate]
Women Managing Partners [Up to PAR]
At the Bar: Maryanne Trump Barry [New York Times]


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