Last week, the American Bar Association passed a resolution prohibiting the use of sexist terms in court. Many news outlets reporting on the prohibition evoked the now-forbidden terms in headlines: “Don’t Call Me ‘Darling’,” began NPR, “Goodbye to ‘Honeys,’” the New York Times declared, “Sorry, Sweetie,” read the Smithsonian. It was the sort of flippant optimism that ought to have been accompanied by a GIF of Judge Judy, though the new ABA provision isn’t nearly as revolutionary as the celebration suggests. There’s an inherent triviality to name-calling, and that’s all that has been effectively eliminated by this supposed victory. Removing buzzwords from a sexist system doesn’t eliminate sexism. It just makes it harder to see.
There’s been quite a bit of controversy surrounding so-called resolution 109. Some politically conservative members of the industry worry the change might harm free speech; others outright dismiss the resolution as an extension of “PC politics.” Proponents have dismissed such concerns, countering that a nationwide standard has proven necessary. “An ethical rule makes us accountable,” former executive director of the San Francisco Bar Association Drucilla S. Ramey told the New York Times. “Lawyers are officers of the court. We’re supposed to set a standard of conduct and that’s a privilege.”
Despite the controversy, resolution 109 passed in San Francisco at the ABA’s annual meeting with a unanimous vote, after 69 people requested to speak in favor of the change. Nearly two dozen states already have similar provisions in place. Still, many felt a prohibition was needed for the profession as a whole. “The states have not waited for the ABA to act. They have been laboratories of change,” law professor Myles V. Lynktold the Times. “It is time for the ABA to catch up.”
At first glance, this would seem like an unfettered win for the 138-year-old institution. But it’s also an obvious necessity, which points to a greater culture of sexism that such basic rhetorical measures can’t possibly address. In a professional microcosm that requires people are expressly told not to call their colleagues “darling,” the world “darling” isn’t the problem. “Darling” is the tip of the misogynistic iceberg, which presumes women are inherently less than. Sexual harassment is significant even in its most frivolous forms because it is based on enforcing a position of power by creating a feeling of shame. The word “darling” and its synonyms encapsulate a type of belittling familiarity taken without permission. In the workplace, verbal harassment signals to women being paid less, doing twice as much for half as much recognition, or being informally required to pretend heels aren’t torture devices that come in pretty colors.
Supposed victories like this one make it too easy for institutions like the ABA to sit back, content that they’ve finished the job, when really it’s barely been started.
On some level, resolution 109 is a step in the right direction. Plenty of people (read: mostly women) will now have a concrete measure with which they can address their aggressors. They can point to resolution 109, and say confidently that a given behavior is expressly not allowed. Still, it does little to eliminate the forces that made such discretions prevalent enough that they needed to be regulated. If the ABA stops here, the broader culture of sexism still has plenty of other ways to manifest within the industry.
Sexual harassment is already prohibited in the workplace, whether via human resources or the option of legal action made visible by Anita Hill in 1991. Yet last year, a Cosmopolitan survey of 2,235 women found that one in three women are sexually harassed at work, and 71 percent of women don’t opt to report their offenders. Earlier this month, a Trades Union Congress survey of 1,500 women in the United Kingdom found that 51 percent of women were harassed over the course of the past 12 months alone. The ABA resolution comes as an answer to the legal profession’s lack of a flat ban, but flat bans historically don’t work.
The culture of gender inequality runs far deeper than any prohibited behavior, and that’s especially true for the legal profession. An ABA-funded study found that 17 percent of equity partners in large firms and 22 percent of general counsels to Fortune 500 companies are women. The numbers are similarly startling for lower-profile positions. Just 32 percent of lawyers trying civil cases are women, as are only 24 percent of lead counsels. “For decades, women and men have graduated from law school in roughly equal numbers,” wrote authors Stephanie A. Scharf and Roberta D. Liebenberg. “Yet, women have not maintained parity with their male counterparts as they progress in their careers.”
When an industry is roughly half women, but only a fourth have earned distinguished levels of success, something is very wrong. It’s crucial for the ABA to meaningfully reflect on the lack of women in top positions, and to consider how an increase in opportunities can be encouraged at every level. A nationwide prohibition is a sign of progress, though granular changes by individual firms may be more important. As the Equal Opportunity Employment Commission wrote in its 2016 report on harassment: “The importance of leadership cannot be overstated — effective harassment prevention efforts, and workplace culture in which harassment is not tolerated, must start with and involve the highest level of management of the company.”
At best, resolution 109 is still far from enough. The more detrimental effects of sexism, like refusing women promotions and raises, will continue to fester under the cover of the girl power Band-Aid that’s been slapped over the genuine issue. Supposed victories like this one make it too easy for institutions like the ABA to sit back, content that they’ve finished the job, when really it’s barely been started.
Meanwhile, if the person doing the job was a woman, she’d have to spend twice the amount of time climbing the corporate ladder, and even if she made it to the top, she’d probably have to endure a condescending pat on the head or two.
