Working for Justice

New York Judicial Committee Issues Report and Recommendations on Gender Equity in State Court

Posted December 11th, 2020 by Carolin Guentert and Lucy Zhou in Gender Discrimination and Harassment.

In November 2020, the New York State Judicial Committee on Women in the Courts released its 2020 Gender Survey, detailing the treatment of women attorneys, litigants, and court employees in the state court system. While the study found that the treatment of women has improved markedly in the last few decades, it also found that significant gender bias continues to persist in New York State courts.

The study—a sequel to the original 1986 report—was based on survey responses from a sample of over 5,300 attorneys admitted to practice law in New York State. The survey focused on several key issues, including the courthouse environment/sexual harassment; how gender impacts court interaction and perceived credibility; the treatment of domestic violence, rape, and prostitution cases; and the adequacy of courthouse facilities in providing Children’s Centers, lactation facilities, and baby changing stations.

Treatment by Other Attorneys

Though the Committee found that conditions in court facilities have improved since the original report, it also found continued gender disparities, as well as differing perceptions of discrimination between men and women. Regarding sexual harassment, for example, 10 percent of women surveyed reported that women attorneys are subjected to unwelcome physical contact by other attorneys in courts frequently, and another 36 percent reported that it sometimes occurred. Meanwhile, of the men surveyed, 3 percent reported that female attorneys are subjected to unwelcome physical contact by other attorneys frequently, and an additional 16 percent reported that it sometimes occurred.

When asked whether women attorneys experience inappropriate or offensive verbal comments, jokes, or obscene gestures by other attorneys, 23 percent of female respondents reported that such behavior occurred frequently, and another 44 percent reported this happening sometimes. In contrast, only 5 percent of men who responded said other attorneys often behaved in this manner and 27 percent said such behavior occurred sometimes.

Treatment by Judges

Although both women and men surveyed agreed that unwelcome physical contact and inappropriate verbal behavior is most often committed by other attorneys, they also reported that women attorneys experience such conduct from judges and nonjudicial court personnel.

Notably, the survey results also revealed that more than half of the women surveyed agreed that male judges appeared to afford more credibility to the statements and arguments made by male attorneys. Only 13 percent of the men who participated reported the same. With respect to witnesses, 27 percent of women surveyed agreed that male judges appeared to give more credibility to male witnesses than female witnesses.

The survey also revealed that women are frequently called by their first names or terms of endearment in the courthouse, while men are addressed by their surname or title; nearly one third of women who responded to the survey believe the practice occurs “very often” and another third believe it occurs “sometimes.” Moreover, over half of the surveyed women responded that “in cases of negative or demeaning conduct by others, judges rarely or never intervene.”

Domestic Violence, Custody, Child Support, Gender-Based Violence Cases

The report also concluded that while there has been improvement in these areas since the 1986 report, gender inequity persists in cases involving domestic violence, custody, child support, and gender-based violence. For example, surveyed attorneys responded that additional measures are required to increase the safety of domestic violence survivors in the courthouse; that child support awards are not adequately enforced; that women who have not been employed due to homemaking and/or child care responsibilities are often negatively impacted in matrimonial cases involving equitable distribution and maintenance awards; and that in cases involving gender-based violence, “some societal attitudes persist considering rape occurring within marriage or when the parties know each other as less pernicious than rape involving strangers – and to some degree impact upon the prosecution of these cases.”

Court Facilities

Survey respondents were also asked whether certain court facilities – which “can make a difference in [litigants and witnesses] being able to participate fully in their case or court appearance” – were sufficiently accessible in courthouses. Both men and women responded that too many courthouses do not have Children’s Centers and that there are inadequate lactation facilities and baby changing stations. In turn, this has “a negative impact on court calendaring and efficiency” and causes “an unfair hardship upon those requiring such facilities.”

Recommendations

Based on the survey results, the Committee issued a number of recommendations, including:

  • Regular training for all judges and court employees that will allow them to recognize gender bias and learn how to respond when such behavior appears or is reported. Specifically, such training should include methods for addressing inappropriate gender-biased conduct on the part of attorneys and court personnel when it occurs in the courtroom.
  • Courts and Attorney Disciplinary Committees should regularly publish a report about complaints received regarding sexual harassment, gender bias, and discrimination, and how such complaints were resolved.
  • Judges and court personnel should be regularly trained on implicit bias addressing gender, age, and race.
  • Judges should intervene when instances of inappropriate conduct, including gender bias, arises in their courtrooms.
  • Bar associations and law schools should integrate content regarding civility, comportment, professional appearance, and bias-free behavior into their educational programs.
  • Courthouses should create safe waiting areas for survivors of domestic violence.
  • Judges and court personnel in a court that hears cases involving family offenses should undergo regular and specialized training regarding the dynamics and impact of domestic violence.
  • The legislature should establish funding dedicated to providing advocates in every Family Court and Criminal Court to assist survivors of domestic violence.
  • Judges should expressly credit the contributions of a spouse who has been a homemaker as a factor in determining equitable distribution and in awarding maintenance. When determining the amount and duration of maintenance, Judges should also expressly consider the impact of domestic violence on the survivor’s employability.
  • Human Trafficking Intervention Courts should be established throughout New York State.
  • Judges should be educated on “the difference between vigorous cross-examination that protects the defendant’s rights and questioning that includes improper stereotyping and harassment” of the survivor of gender-based violence.
  • A fully staffed Children’s Center, a lactation space, and baby changing stations should be accessible in every courthouse.

Despite the continued areas for improvement as identified by the report, the Committee concluded that “the remaining vestiges of inappropriate treatment of women in our court system can and will be eliminated by the fulfillment of the many recommendations directed to court administration, judges, attorneys, bar associations, and other relevant entities.”

Carolin Guentert is an Associate in the New York office of Sanford Heisler Sharp, LLP. She received her J.D. from New York University School of Law in 2014, her LL.M. with distinction from Georgetown University Law Center in 2019, and her B.A. summa cum laude in International Studies from The College of New Jersey, with minors in French and Women’s and Gender Studies.
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Lucy Zhou is an Associate in the Baltimore office of Sanford Heisler Sharp, LLP. She received a bachelor’s degree in Law, Jurisprudence, and Social Thought from Amherst College and a J.D. from NYU School of Law.
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