On August 8, 2016, the American Bar Association, by near-unanimous resolution, voted to amend its Model Rules of Professional Conduct to classify harassment and discrimination in the practice of law as professional misconduct. Rule 8.4(g) now states that it is professional misconduct for a lawyer to:

[E]ngage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

The Law Society of Upper Canada’s Rules of Professional Conduct contain similar provisions expressly prohibiting lawyers from engaging in discriminatory and harassing conduct, although such behaviour is not specifically defined as professional misconduct.  

These kinds of protections are obviously very important. They provide a mechanism for addressing sexism in the practice of law, but they also formalize the legal profession’s moral position on the issue. As the National Association of Women Lawyers wrote in its letter supporting the amendments to Rule 8.4, “Perhaps when the refusal to accept discrimination and harassment is literally written into the moral code of the legal profession, women and minorities will be fully accepted as colleagues, partners, bosses, and opposing counsel.”

However, despite having been written into the Ontario legal profession’s “moral code”, sexist language continues to be a problem in the practice of law. This is at least in part because our governing laws formally prohibit discrimination and harassment, but do not create a positive obligation to address repetitive, ubiquitous, and insidious forms of sexism that disempower women within the profession.

In a recent hallway negotiation, for example, I was repeatedly called “sweetie” by a party adverse in interest, who was male and many years my senior. Anxious to avoid escalating matters when settlement seemed doable, I didn’t call this person out on the inappropriateness of his language, even when he went so far as to refer to me as “this young lady” to the mediator. But the experience rattled me. I felt like I had made a justifiable professional call, but had let myself, and all women, down.

“Pet names” like “sweetie” are inherently infantilizing. Other examples are referring to female counsel as “honey” or “love” or “dear”, or to a group of females as “girls”. This language extends to and affects non-lawyers within the profession as well, particularly assistants. (Consider older members of the bar who still refer to assistants as “my girl”.) Other kinds of harmful language play on sexist tropes (such as “calm down”, which suggests female hysteria), or aim to sexualize or objectify (e.g., “She’s not just a pretty face, eh?”). In addition to all these examples are the broad generalizations based on gender (e.g., “Women tend to be more interested in starting families” or “A male associate would be better equipped to handle this situation”).[2]

To write this article, I reached out to female lawyers of varying levels of experience and asked how they personally dealt with sexist language in their practices. Here are some of the answers I received:

• Many women responded that a polite “Please refer to me as counsel” will sometimes do the trick, although it invariably changes the tone of the exchange and puts the other party on the defensive. My sense is that this tends to work best when the problem is older lawyers that still reflexively use inappropriate language.
   
• Though this isn’t a direct response to sexist language, a change in physical posture can work to equalize the power dynamic of a conversation. Some women I spoke with make a conscious effort to shift their body language to match opposing counsel. This can mean taking a more aggressive posture, standing up to avoid being (physically) talked down to, or leaning forward during a discussion instead of away.
   
• One woman told me she has had success in feigning ignorance. She said she sometimes responds to comments with “I don’t get it…” or “What do you mean?”, and that “there is nothing more awkward than someone having to explain their sexist/racist/ableist joke.”
   
• If the moment calls for it, a short retort can defuse the situation. One woman I spoke with told me that she once she responded to the question “How long have you been practicing?” with “Long enough.” I was also told the story of one female lawyer who was called “sweetie” by opposing counsel during a phone call. Apparently, she simply hung up, but not before saying, “Did you just call me sweetie? Please call me back when you can use appropriate terminology.”
   
• Sometimes conduct is so egregious that more extreme measures are needed. One lawyer told me that, on a file opposite to a lawyer whose phone calls and emails were rife with inappropriate language, she simply refused to respond to anything but letters sent by fax. She found that by requiring counsel to sit down and write out a letter, he was forced into a sort of artificial professionalism.

Another significant challenge of being a female lawyer responding to sexist language in the practice of law is that your conduct must be balanced against the duty to act in your client’s best interests. So, for example, I heard from many women that they were concerned that taking a strong stance against sexist language would antagonize opposing counsel or a decision-maker and potentially prejudice their ability to secure a good outcome for their clients. There is also a widespread fear among women in the profession that if you are firmly or vocally opposed to sexist language, particularly in respect of your own colleagues, you will be seen as “bitchy” or sensitive, or not a team player, or that you’ll risk alienating an important mentor.

But it’s incorrect to suppose that the best way to serve your client’s interests, and your own professional success, is to simply roll with the punches. Being referred to as “sweetie”, for example, seriously undermines women’s professionalism and credibility in their client’s eyes. And the effects of sexist language on women’s ability to succeed in the practice of law are profound. It’s been shown that sexist language can seriously impair women’s professional confidence. A recent study, for example, investigated the effects of infantilizing language on women’s self-perceptions and concluded that being called “girl” rather than “woman” negatively influences a woman’s feelings about and confidence in her own leadership qualities. It’s not hard to see why sexist language is often used as a disarming tactic by opposing counsel, and why many of those who opposed the amendments to the ABA’s Rules did so because they thought the prohibition would impair zealous advocacy.

In light of these realities, in the course of speaking to women to prepare to write this article, the best advice I received was that women are simply entitled to, and should empower themselves to, respond to sexist language in the practice of law. In other words, as I was advised by a more senior lawyer, if conduct or language makes you feel like less of a professional, you are entitled to adjust the situation to allow you to do your job. This entitlement is of course inherent in human dignity, but also by virtue of membership in the profession, and will ultimately assist you in carrying out your professional duties.

Further, and ideally, in addition to having policies prohibiting workplace discrimination and harassment (and such policies are now, finally, required by law), firms would also have a duty to educate their lawyers about the harmful effects of subtler, “everyday” sexism, and actively empower female associates. For example, one female junior associate I spoke with told me that, after experiencing sexist remarks from opposing counsel, she confided in her mentor, a senior lawyer at her firm. She noticed that from that point on her mentor made a serious effort to refer to her by name in front of counsel and opposing parties, and to specifically credit her for her role in various files. Firms might therefore have in place an active policy of referring to younger associates by name and crediting them, particularly in front of opposing counsel, mediators, judges, and clients. Another important policy would be to refuse to work with clients, or members of the legal community, who are openly discriminatory or prejudiced. This could be written into a firm’s own mission statement, for example, or—better yet—its standard retainer agreement.

Ultimately, the burden of responding to sexist language should not be borne solely by female lawyers in the course of their day-to-day practice, but should be the positive responsibility of the profession. Until that day comes, however, my hope is that the advice in this article helps female lawyers empower themselves to demand the conditions that best foster their own professional success.

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