Labor / Employment, On The Job

Even Female Judges Get Harassed!

Kind of depressing that a woman needs to talk more like a man to be heard. Even when she is a judge.

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I had dinner the other night with a classmate from law school who has spent the last 20 years as a New York jurist. We talked about the numerous trials she had conducted, and at one point, she told me that she could not believe how rude and abusive some male lawyers were to her. Like talking over her, interrupting her, and trying in many respects to run the courtroom and take it away from her.

Now, she is no wallflower, and I suggested (and here I give a big shout out to my partner Amy Epstein Gluck, the “Notorious AEG”) that this was sexist behavior on the part of the lawyers; that they would likely not do that to male judges.  Her response can be reduced to one word: “Duh.”

Microaggression Is Sexist

Things that were not seen as sexist before are now seen for what they are — sexist. And things that were tolerated before are no longer tolerated.

Which leads me to my post today: the microaggressions which women may have not seen as sexist before, and may have tolerated before, but not anymore.  And at the highest levels.

It is hard not to write about sexual harassment and discrimination after the advent of the #MeToo movement and post-Weinstein.   Perhaps the best posts were the famous three-part dialogues I had with the Notorious AEG in which she artfully (but nicely!) parried what I had thought were my brilliant and thoughtful points about sexual harassment.  My takeaway from the dialogues was that despite my best and most sincere efforts, as a white male I will never understand how victims of harassment experience such treatment.  I learned from her.

Just last week I quoted Kathryn Rubino who wrote here about “screamers” at law firms, and how “it’s a form of abuse designed to keep subordinates, well, subordinate.”  And in good part, this means women.

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Got that.

And in 2017, I wrote about a survey which found that 40 percent of high-powered folks such as female barristers in the UK, “have suffered harassment and discrimination, but only half of those reported it because of ‘concern about the impact on their career,’ and because half of those who did ‘were not satisfied with the response.’”

Got that, too.

But what about behavior and comments that are not so obviously harassing or abusive to the unobservant (perhaps willfully blind) male worker? Like things that one didn’t read about in the Weinstein matter, because there were so many more egregious things that were reported?

Like what my friend has endured over the course of her long career as a judge.

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Manterruption and Mansplaining: Sexist Behavior 

Well, it seems that the Notorious AEG had that covered.  Some time ago she posted that:

“Gender stereotyping promotes all sorts of conduct that is ill-suited to the workplace and is demeaning to women?” …  ‘Manterruption’: as Sheryl Sandberg explained … is the unnecessary interruption of a woman by a man, a man interrupting a woman while she’s trying to speak.  ‘Mansplaining’ [is] a close relative to manterruption, but different. Mansplaining is a man’s act of condescendingly explaining something to a woman—even when she hasn’t requested the information, or knows more about the topic than he does.”

And she nailed it in another post. “It seems there is no place immune from sex discrimination,” she wrote. “Even the Oval Office.” And under Obama!

Bropriating At The Highest Levels

She quoted reporter Juliet Eilperin who, in the Washington Post, wrote about the 1/3 of Obama’s top aides who were women when he took office, and who complained “of having to elbow their way into important meetings. And when they got in, their voices were sometimes ignored. So female staffers adopted a meeting strategy they called ‘amplification’: When a woman made a key point, other women would repeat it, giving credit to its author. This forced the men in the room to recognize the contribution – and denied them the chance to claim the idea as their own.”

This is known, by the way, as “bropriating.”

And it seems that there’s significant research to support the concept that, at least as to “manterruption,” this is a real and quantifiable phenomenon.

Manterruption At The Supreme Court!

Tonja Jacobi and Dylan Schweers wrote in the Harvard Business Review last year of their research on the U.S. Supreme Court in which they found that “women get talked over much more often than men in all sorts of settings, likely due to unconscious bias. What our findings additionally suggest is that there is no point at which a woman is high-status enough to avoid being interrupted.”  They studied transcripts of Supreme Court oral arguments: “Our new empirical study shows that the male justices interrupt the female justices approximately three times as often as they interrupt each other during oral arguments.”

Wow.

(And, for what it’s worth, they found that “the conservative justices interrupt the liberal justices more than twice as often as vice versa.”)

Moreover, “as more women join the court, the reaction of the male justices has been to increase their interruptions of the female justices. Many male justices are now interrupting female justices at double-digit rates per term, but the reverse is almost never true. In the last 12 years, during which women made up, on average, 24 percent of the bench, 32 percent of interruptions were of the female justices, but only 4 percent were by the female justices.”

More startling: “Despite strict rules mandating that advocates stop talking immediately when a justice begins speaking, interruptions by male advocates account for approximately 10 percent of all interruptions that occur in court … In contrast, interruptions by female advocates account for approximately 0 percent.”

And finally, “The problem was particularly observable when, in 2015, male advocates interrupting Justice Sotomayor was the most common form of interruptions of any justice, accounting for 8 percent of all interruptions in the court. Justice Sotomayor is also the court’s only woman of color.”

Pretty troubling.  Sexist and perhaps racist, too.

Talk Like A Man!

An observation which they made is particularly noteworthy and worthy of a lot more discussion: “Length of tenure does matter in one particular respect: Time on the court gives women a chance to learn how to avoid being interrupted — by talking more like men.”

Is that what women are forced to do — talk more like men?  Is there no other way to be heard?

Takeaway

Kind of depressing that a woman needs to talk more like a man to be heard. Even when she is a judge.

I have to send this post to my old friend. And also to the Notorious AEG.  And maybe put them in touch!

richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.

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