GENDER BIAS - California CourtsThe Effects of Gender In the Federal Courts: The Final Report of the...

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GENDER GENDER BIAS BIAS GUIDELINES FOR JUDICIAL OFFICERS Avoiding the Appearance of Bias Avoiding the Appearance of Bias

Transcript of GENDER BIAS - California CourtsThe Effects of Gender In the Federal Courts: The Final Report of the...

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GENDERGENDERBIASBIAS

GUIDELINES FORJUDICIAL OFFICERSAvoiding the Appearance of BiasAvoiding the Appearance of Bias

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Produced by the Judicial Council Advisory Committee onAccess and Fairness with the assistance of the OrangeCounty Bar Association Gender Equity Committee

August, 1996

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Judicial Council of CaliforniaAdministrative Office of the Courts

303 Second Street, South Tower � San Francisco, CA 94107-1366Telephone 415-396-9100 � FAX 415-396-9349 � TDD 415-396-9288

R O N A L D M . G E O R G E W I L L I A M C . V I C K R E YChief Justice of California Administrative Director of the Courts

Chair of the Judicial CouncilD E N N I S B . J O N E S

Chief Deputy Director

August 1996

I am pleased to provide you with this booklet on gender fairness issues, “Guidelines forJudicial Officers: Avoiding the Appearance of Bias.” It was produced as a cooperativeeffort between members of the Gender Fairness Subcommittee of the Judicial Council'sAccess and Fairness Advisory Committee and the Orange County Bar Association GenderEquity Committee.

This booklet is one of the educational tools that have been developed to implement therecommendations from the report “Achieving Equal Justice for Women and Men in theCalifornia Courts” which were adopted by the Judicial Council in 1990. Implementationof the gender-fairness proposals supports the council's long-range strategic plan whichidentifies as a primary goal the need to “improve access, fairness, and diversity in thejudicial branch” and targets the need to “identify and eliminate bias in the courts” as asignificant policy direction. These efforts have been and will continue to be successfulthrough the collaborative participation of the council and its committees, local courts, theState Bar, local bar associations, the Legislature, and an array of other justice system andcommunity agencies.

Courts in several other states have found similar educational materials helpful inaddressing issues relating to gender fairness, and I am pleased to add California to thegrowing list of states developing these tools for judicial officers and court personnel. Theimportant principles set forth in the booklet serve to reaffirm the Judiciary's continuingcommitment to ensure access and fairness for all participants in the California judicialsystem. Please take the time to review this excellent resource and share it with others inyour court.

Sincerely,

Ronald M. GeorgeChief Justice of CaliforniaChair, Judicial Council of California

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Do you see yourselfhere?

Have you ever:

Told an off-color joke in chambers?

......How about a dumb-blond joke?

Remarked to a female attorney howher family commitments mightinterfere with her responsibilities tothe Court?

Hesitated to award a father primarychild custody or given a smallersupport order if the paying spouse isthe mother primarily because of theirgender?

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Called a female lawyer "dear,""honey," "sweetie," "sweetheart,""darling”? How about "young lady,""missy," "little lady," "Miss America"?

Expressed surprise that a womanwould appear in court late in herpregnancy?

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Called a woman by her first name butaddressed a man as "Mister so-and-so”?

Referred to a female criminaldefendant as a "bimbo”?

Treated a female criminal defendantwith more leniency just because sheis a female?

Made remarks about a woman'sappearance, clothing, attractiveness,or unattractiveness, either to her faceor behind her back? Allowed yourcourt staff to do this?

......Does "nice legs" ring a bell?

YOU’RE SAYING "NOT ME"RIGHT?

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WELL, CONSIDER THIS:

According to a survey conducted in a largemetropolitan legal community, California judgeshave done all that and more. Apparently we arenot the enlightened, with-it bench of the 90's wethought we were.

< < < < < < < < < < < < < < < < < < <

Lawyers who practice before us, the supportpersonnel who work with us, and our very owncolleagues report that we sometimes:

adopt a degrading and demeaning tone andattitude toward women

give fathers a raw deal and are harder onmale defendants in criminal matters

afford less time for women in oral argumentand find the same argument less persuasivewhen made by a woman

IT LOOKS LIKE WECOULD REALLY USETHESE GUIDELINES!

,

,

,

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“My investigation in this field has persuaded me that manyirrational and harmful distinctions continue to be made inthe legal, political and social treatment of the sexes in ourcountry, that the resulting injustices have impeded ourdevelopment as a nation, and that they have led to muchpersonal unhappiness for American men as well aswomen.”

Leo Kanowitz, Sex Roles in Law and Society(University of New Mexico Press 1973)

PREFACE

The purpose of this handbook is not toattempt to regulate anyone's private life, speech,communication or attitude, but to address thoseareas in which judicial officers must rememberthat they are perceived as the embodiment of thelaw. These guidelines are addressed specificallyto judicial officers when acting in their officialcapacities in public situations or where they maybe perceived as representatives of the legalcommunity. They are aimed at eliminatinggender bias from, and achieving gender equalityin, our courts.

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dddd WHAT IS GENDER BIAS? dddd

Gender bias is behavior or decision-makingwhich is based on or reveals:

1) stereotypical attitudes about the natureand roles of men and women;

2) perceptions of their relative worth; or 3) myths and misconceptions about the

social and economic realitiesencountered by both sexes.

Judicial Council Advisory Committeeon Gender Bias in the Courts Report (1990)

dddd WHY SHOULD WE CARE? dddd

THERE ARE THREE GOODREASONS:

v v IT’S THE RIGHTTHING TO DO

v v IT’S THE LAW

v v IT’S TIME

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REASON # 1:

It’s The Right Thing to Do!

A courtroom free of gender bias:

, enhances respect for the Court and thelaw

, , fosters respect for the equality of both

sexes , promotes respect by participants for

each other, leading to increased civilityin the courtroom

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REASON # 2:It’s The Law!

Canons 3B(5) and (6) of the CaliforniaCode of Judicial Ethics (1996) provide that:

, , “[A] judge shall not, in the performance ofjudicial duties, by word or conductmanifest bias or prejudice... based upon...sex....”

, , “A judge shall require lawyers in

proceedings... to refrain from manifesting,by words or conduct, bias or prejudice

based upon... sex....”

Section 1(a) of the Standards ofJudicial Administration (Appendix to theCalifornia Rules of Court Division 1) adviseseach judge:, , “... in all courtroom proceedings, [to]

refrain from and prohibit others fromengaging in conduct that exhibits bias....”

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REASON # 3:It’s Time!

Jurisdictions across the nation recognizethat the time has finally come to eliminategender bias in our courts.

The first gender bias task force wasformed in 1982 by the New JerseySupreme Court.

Since then, task forces in over 40states and several federal judicialcircuits (including the Ninth Circuit)have been formed.

In California, the Judicial CouncilAdvisory Committee On Gender Biasconducted a statewide study and maderecommendations to eradicate genderbias in the judicial system. To date,one half of the recommendations havebeen implemented.

dddddddd IT’S UP TO EACH OF US ddddddddTO DO OUR PART

¶¶

¶¶

¶¶

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dddddddd WHAT SHOULD WE DO? dddddddd

ØØ LEAD BY EXAMPLE ××××

“Judges set the tone and establish the norms of properbehavior... Judges can lead by example and by using theirauthority and influence to ensure that the .... courts offer trulyequal access to men and women judges, lawyers, employees,and litigants."

The Effects of Gender In the Federal Courts: The FinalReport of the Ninth Circuit Gender Bias Task Force, 67 S.Cal. L. Rev. 745, 959 (1994).

� � A judge's unbiased behavior and insistenceon the same from others in the courtroomis the most effective way of eliminatinggender-biased behavior.

� � Treat all court staff, litigants, witnesses and

attorneys with courtesy and dignityregardless of their sex, race or any othercharacteristic.

u u Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 249 -53. Trial court's lengthy interrogation of plaintiff insexual harassment action, which differed markedlyfrom the treatment accorded other witnesses, using a"fatherly tone" that was "either courtly and patronizingor harsh and reprimanding" created a strongimpression of gender bias.

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� � Be consistent in your forms of address:If a male attorney is referred to as "Mr.," afemale attorney should not be referred to byher first name. Where the bailiff is referred toas "Deputy," the female clerk should not bereferred to by first name. Professional titlessuch as "Doctor" or "Professor" should beused to address all experts, both male andfemale.

u u Determinations of New York State Comm'n on JudicialConduct: Matter of Jordon, N.Y.L.J., Mar. 2, 1983, 192[1982- 83]. New York State Judge publicly disciplinedfor twice addressing a female attorney as "little girl."

u u Final Report of Ninth Circuit Gender Bias Task Force,

67 S. Cal. L. Rev. 745, 812. References by judges totheir secretaries or courtroom deputies as "my girl"reported as incidents of gender bias.

� � The same holds true in written references tocounsel, parties, or witnesses.

u u In re Marriage of Iverson (1992) 11 Cal.App.4th 1495,1499 - 1500. Reference to wife in marital dissolutionopinion as a "lovely girl" "...shows gender bias towardher as a witness. The judge did not use a similardescription for [the husband]."

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� � Avoid remarks or conduct that reflectstereotypical attitudes about how men andwomen act.

u u Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 258 -59. Trial court improperly assumed that a woman'sfailure to aggressively resist defendant's sexualassault constituted consent.

u u Estate of Vermont v. Forte (1993) 159 Vt. 550, 563 - 65,

624 A.2d 352. Dissent criticizes trial court'sdescription of female prosecutor as too "emotionallyinvolved" and "a fury seldom seen this side of hell."

u u In re Marriage of Iverson (1992) 11 Cal.App.4th 1495,

1500 - 01. Overturning divorce judgment, in partbased on the trial judge's biased remarks to the wife,including "Why in heaven’s name do you buy the cowwhen the milk is free?”

REVERSED!

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� Intercede when anyone exhibits behaviorwhich appears to be gender-biased. Thefailure to do so will send a message that biasis "O.K." in the courthouse. Also, rememberthat your staff's conduct reflects on the court.

u u Vitko v. Vitko (N. Dak. 1994) 524 N.W.2d 102, 105. Concurring opinion, noting the need for interventionby the trial court in response to counsel’s egregiousgender bias, observed: “A judge should be vigilant inmaintaining the integrity of the judicial system byputting a stop to an attorney’s misconduct in a mannerthat lets the attorney know the remarks or conduct, orboth, will not be tolerated.”

u u In re Plaza Hotel Corp. (E.D. Cal. 1990) 111 Bankr. 882,

891- 92. Court rebuked debtor's lawyer who referredto the Trustee's female lawyer as "office help" andmade other gender-biased remarks during courthearing and threatened him with disqualification if theoffensive conduct continued.

u u Matter of Werner (E.D. N.Y. 1991) (cited in Principe v.

Assay Partners (1992) 586 N.Y.S.2d 182, 185). Courtpublicly censured an attorney who addressed a lawclerk as "young lady."

u u Principe v. Assay Partners (1992) 586 N.Y.S.2d 182,

184 - 86. Court sanctioned counsel who addressedfemale opposing counsel on the record as "littlemouse," "young girl" and "little lady" during adeposition.

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� � Do not justify preferential treatment in thename of "positive bias.” Avoid givingbreaks to female litigants or attorneys thatmales would not receive. Considerwhether criminal sentences and family laworders are being made free of a desire tofavor a particular gender.

u u Metzner v. Metzner (W. Va. 1994) 446 S.E.2d 165, 175 -76. Dissent in marital dissolution case complainingthat "the majority, in awarding [the wife's] one-sideddemands, once again denies justice at a husband'sexpense, reinforcing the sexual stereotype of all menbeing 'deep pockets' to whom money means nothing."

u u United States v. Mast (C.D. Cal. 1989) No. CR-88-0720-

AAH-1. Trial court justified significant departure fromsentencing guidelines for female convicted of bankrobbery on the theory that she was “dominated” byher male partner in crime, noting “it’s a fact of life thatmen can exercise a Svengali influence over women.”

� � Refrain from unnecessary sexdesignations. It is not appropriate todescribe someone as a "female lawyer,""female doctor," or "male secretary."

u u In Re Kirby (Minn. 1984) 354 N.W.2d 410, 413 - 14.Judge censored for calling female attorneys“lawyerettes.”

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� � Think before commenting on the physicalappearance of others and avoid conductthat is overly personal in nature.REMEMBER: Some practices which mightbe appropriate in private or social settingsare inappropriate in the required levelplaying field of the courthouse.

u u Judge Disciplined for Remarks Offensive to WomenLawyers, N.Y.L.J., July 24, 1985, at 1, col. 3. Judgeadmonished for his practice of referring to theappearance and physical attributes of femaleattorneys.

� � Be mindful of bias even in chambers. Donot allow the informality and comfort ofchambers to foster biased behavior.

u u Geiler v. Commission on Judicial Qualifications(1973)10 Cal.3d 270. Judge removed for subjecting femaleattorneys in chambers to a discourse on salaciousaspects of cases involving rape and homosexual acts.

u u Ryan v. Comm’n on Judicial Performance (1988) 45

Cal.3d 518. Judge removed for misconduct, includingtelling sexual jokes in chambers to female attorneys.

u u In re Gordon (1996) 13 Cal.4th 472. Judge publicly

censured on recommendation of the Commission onJudicial Performance for “engaging in ‘conductprejudicial to the administration of justice’” for making“sexually suggestive remarks to and asking sexuallyexplicit questions of female staff member,” eventhough “[n]one of the conduct occurred while courtwas in session or while the judge was on the bench.”

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A Final Thought

Language is the most powerful tool in thecourtroom. The words we use have meaningsbeyond the obvious -- they influence attitudes,behavior and perceptions.

Gender-biased words and phrasesdehumanize and demean women, makeunwarranted and incorrect assumptions aboutpeople, perpetuate harmful stereotypes and leadto unequal treatment.

The role of judicial officers as dispensersof justice and equality demands that all peoplebe treated with dignity and respect. The use ofbias-free words and phrases -- such as“workers’ compensation,” “firefighter,”“reasonable person” and “presiding juror” --engenders confidence that that role is beingfulfilled.