From Mad Men to Times Up: What We Must Do to Ensure Workplace Parity for Women in Criminal Justice—A Women in Criminal Justice Taskforce Member’s Perspective

Women’s labor-force participation after the mid-1970s accelerated. Eileen Appelbaum, Heather Boushey & John Schmitt, The Economic Importance of Women’s Rising Hours of Work 3–7(Ctr. for Am. Progress Apr. 2014). From 1970 to 2000, workforce participation rates for women ages 25 to 44 increased from 47 percent to 76 percent, where it held steady until before the COVID epidemic. Id. However, how much of our grandmother’s world still exists that holds women back from reaching the highest level of success—particularly in the criminal justice field—is one the TF seeks to answer. The answer is disturbing.

The TF heard the testimony of 168 female leaders in the criminal justice field which was followed-up by a quantitative survey. The data illuminated four broad themes posing challenges to women in the workplace: (1) gender discrimination, lack of respect, and devaluation; (2) caregiving, motherhood, and systemic obstacles to juggling work–life expectations; (3) the need for sponsorship and allies; and (4) special issues related to the criminal justice field in terms of low salaries and vicarious trauma.

Why are these issues important? When women are left behind, organizations and society lose. The research is robust and very clear –the most gender-diverse organizations are likely to significantly outperform the least gender-diverse organizations. McKenzie & Co., Diversity Wins: How Inclusion Matters (May 19, 2020). In the criminal justice field, the presence of female leaders provides more actual justice and more procedural justice. Women’s leadership correlates with reduced corruption. Maryam Ahranjani, “Toughen Up, Buttercup” versus #TimesUp: Initial Findings of the ABA Women in Criminal Justice Task Force, 25 Berkeley J. Crim. L. 99, 103–04 (2020) [hereinafter Ahranjani, Initial Findings]. Victims, defendants, and jurors from marginalized groups are more likely to perceive the system in a positive way if attorneys have similar identities and can understand their experiences and empathize with them. Id. Correspondingly, the most marginalized of all victims, child victims have expressed more comfort with female attorneys. Id. In order to improve the criminal justice system, ensuring female leaders is imperative.

This was the case when the CJS Women’s Task Force began its work, and it is equally true, and very much more difficult, today. The COVID-19 crisis disproportionately impacted women. Tyler Boesch et al., Pandemic Pushes Mothers of Young Children Out of the Workforce, Minneapolis Fed. Rsrv. Bank (Feb. 2, 2021). Because ingrained gender expectations manifest as mothers bearing more of the unpaid work related to children, and the COVID crisis mandated children be taught from home, as many as three million women left the workforce because of the lack of bandwidth. Id. Women are 1.3 times more likely than men to have considered stepping out of the workforce or slowing down their careers—particularly mothers, senior women, and Black women. McKenzie & Co., The Pandemic’s Gender Effect: Women Are Disproportionately Affected by the COVID-19 Crisis. Here’s How to Help, McKinsey Q.: Five Fifty (2020). A TF survey respondent explains how this can potentially manifest in the criminal justice field. “I pay for additional childcare for my school age child. Any time either one of my children has a minor symptom such as a runny nose, there is a high likelihood that they will be sent home from daycare requiring me to either take off work or work from home. Unfortunately, my boss does not understand that this is directly linked to COVID and not just a ‘sick’ child.” See Ahranjani, Initial Findings, supra.

The COVID crisis in addition to four broad themes of (1) gender discrimination; (2) systemic obstacles to juggling work–life expectations; (3) the need for sponsorship and allies; and (4) special issues related to the criminal justice field exacerbates women’s challenges in the criminal justice workplace. The COVID crisis presents both an impediment to female workforce participation and significant opportunities related to flexibility and restructuring office policies. Suggested strategies to improve the hiring, retention, and promotion of female leaders in the criminal justice field are (1) training ourselves and others to be aware of our biases, challenge them, and track our progress; (2) working to restructure office policies in order to create parity and hold ourselves accountable by collecting data; (3) becoming an ally—or aligning yourself—with women and women of color and other intersectionalities in particular; and (4) educating practitioners on strategies for dealing with vicarious trauma and traumatic stress.

The Women in Criminal Justice Task Force

Emily Johnson, a communications specialist with the Criminal Justice Section of the ABA, asked section leaders why only 26 percent of the section’s members are women. The TF came to fruition from these discussions and the support of Section Director Kevin Scruggs, Section Chair Lucian Dervan, and subsequent Section chairs. Twelve women with diverse life, racial, and demographic experiences are members of the TF. Co-chairs Tina Luongo and Carla Laroche, and reporter Maryam Ahranjani lead the TF. The advisory group of experienced practitioners also helps guide the project. The author of this article is a member of the TF.

The TF first listened to women testify regarding their experiences in the workplace. Local and national bar associations, taskforce members, and criminal justice leaders nominated diverse female leaders in the field to give testimony on their experiences in the workplace. From November 2018 to March 2020, the TF crisscrossed the nation from Washington, D.C., to Washington State holding 12 listening sessions to hear 168 women testify. Ahranjani, Initial Findings, supra. The TF conducted a follow-up quantitative survey from October to December 2020. Maryam Ahranjani, Pulling Back the Curtain: A Follow-Up Report from the TF (Am. Bar Ass’n 2021).

During the listening sessions and survey, some common themes emerged from the radically diverse women and locations that shed light on the challenges in hiring, retention, and promotion that women recounted. Women of varying life experiences described similar challenges relating to the four broad themes that were discovered as a result of the survey mentioned above.

Gender Discrimination, Lack of Respect for and Devaluation of Women (Particularly LGBTQ Women and Women of Color)

The Problem

Men’s and women’s achievements are recognized and evaluated differently. Virginia Valien, Gender and Evaluation in Extending Justice: Reducing Bias (Bernice B. Donald & Sarah Redfield eds. 2021). Negative gender and intersectional stereotypes influence both male and female evaluators when valuing the same performance. Naomi Ellemers, Gender Stereotypes, 69 Ann. Rev. Psychol. 275, 278–79 (2018). Women are less likely than men to be selected for promotions and prestigious positions. Id. For instance, female professors were less likely than male professors to be awarded an endowed chair despite the lack of difference in academic publications, citations, years into career, or number of children. Id. A meta-analysis of almost 100 empirical studies conducted among 378,850 employees in different industries documents the broad undervaluing of women’s performance across all sectors. Aparna Joshi, When Can Women Close the Gap? A Meta-Analytic Test of Sex Differences in Performance and Rewards, 58 Acad. Mgmt. J. (2014). Furthermore, the same meta-analysis found that gender differences in fiscal rewards—bonus, raises, and promotions—are 14 times larger than the already undervalued performance ratings would indicate. Id. Similarly, in private practice within the legal field, only 19.5% of people on the equity partner trajectory in large law firms were women. Cynthia L. Cooper, Broken Rungs on the Career Ladder: A New Analysis of Problems Encountered by Women Lawyers in Private Practice (Am. Bar Ass’n Jan. 21, 2020).

The differences in perception and treatment translates to differences in financial compensation. As of 2018, women’s median earnings are still lower than men’s in nearly all occupations, surprisingly even in those predominately dominated by women. Inst. for Women’s Pol’y Rsch., Fact Sheet: The Gender and Wage Gap by Occupation 2018, and by Race and Ethnicity 1 (Apr. 2019). Based on statistical analysis that controls for other factors, nearly 40% of the gap is unaccounted for, leading researchers to conclude discrimination and unconscious bias continue to impact women’s wages. Id. This wage gap is firmly entrenched in the American workplace and more profound for women with certain intersectional identities. In 2018, white females earned 78.6% of the median salaries of their white male counterparts, Hispanic females earned 55.5%, African American females earned 58.9%, and Asian females earned 84.3%. Id. Some women who testified at the TF listening sessions acknowledged intentionally working to dispel negative stereotypes that might adversely impact perceptions of their job performance. Unfortunately, intersections of race and gender magnify these challenges.

Examples of the types of comments voiced at the listening sessions illuminating negative gender and/or intersectionality discrimination in the criminal justice field are below.

• “No one thinks I am the attorney. They assume I’m the secretary or sister or auntie.”
• “I am routinely called by my first name when male attorneys are called ‘Mr. So-and-so.’”
• “I get called ‘little lady,’ and people said, ‘people will vote for you [for elected public defender] because you are hot.’”
• “There’s a fine line between aggressive and bitch. I was called a chihuahua by a judge once; management said to ‘let it go.’”
• “I have been told I don’t look or act feminine enough.”
• “I’ve had a male judge say to me, ‘Counsel, school your features,’ when I was frowning at him when he ruled against me.”
• “I had a male attorney call a female witness a ‘whore for the government.’ The female judge just said his name. We have thick skins, but that’s not good enough.”
• “People don’t expect Black women to read and write well. God forbid I have a typo because the assumption [is] that it is my intelligence and not the speed of my typing.”
• “They [men and women] bully and intimidate to evoke anger and then we get labeled as the ‘Angry Black Woman.’”
• “I was introduced by my supervisor to a judge as a ‘spicy little Latina.’”
• “We bury these things [sexism, racism] because if we don’t, we can’t continue to work.”
• “I have seen a lot in my nearly 40 years in the same government agency. I have seen sex discrimination and the problems with ‘boy’s club’ behavior (i.e., having to drink, use certain language, partake in the same behavior). I have seen women getting scolded or even demoted for calling out sexism in the office.”

See Ahranjani, Initial Findings, supra.

Potential Solutions

Creating and amplifying evidence-based programs on the effects of implicit and explicit bias—regarding gender stereotyping coupled with other intersectionalities—will help create meaningful change. Organizations can mandate an implicit bias curriculum so that all employees know how to respond when they experience or witness discriminatory or biased behavior.

The bias training must not only increase the awareness that biases are involuntary and widespread, but also provide guidance on how to manage bias, change behavior, and track progress. Francesca Gino & Katherine Coffman, Unconscious Bias Training That Works, Harv. Bus. Rev., Sept.–Oct. 2021. Otherwise, training that only increases awareness regarding reflexive and widespread nature of implicit bias may actually increase discrimination—if people think its unavoidable. Id.

Recommended programs go beyond just raising awareness. Id. They ask participants to take implicit bias tests that provide feedback on levels of implicit bias and teach strategies for overcoming that bias. Studies demonstrate this type of training works to encourage people not only to eliminate bias within themselves, but also to call it out in others. Id.

Creating a meaningful antidote to gender and intersectional discrimination is not just a single education session. It requires changes to policies such as the standardizing the hiring process, the eliminating self-assessments from performance reviews, making the promotion process transparent, and instituting incentives for improving workplace parity. Id. Organizations should also track representation and hiring and promotion outcomes—not only for women, but also women of color and other marginalized intersectionalities. LeanIn.Org & McKenzie & Co., 2021 Women in the Workplace 39 (2021). Organizations should determine whether managers are hiring and promoting women and women of color at similar rates to other employees. If the analysis finds gaps, the organization must double down on best practices. Id.

Caregiving, Motherhood, and Systemic Obstacles to Juggling Work–Life Commitments

The Problem

Reforms to rigid “in office” policies, and systemic access to childcare and family-friendly policies are needed. The out-of-date rigid workplace and societal framework is a principal impediment to finding parity for women in the workplace in general and for women in the criminal justice field in particular. US Congress Joint Economic Committee, Invest in Women Invest in America: A Comprehensive Review of Women in the US Economy 6 (US Congress 2010).

Women have entered the workplace, but typically they still assume significantly more of the household tasks such as laundry, meal preparation, dishwashing, cleaning, childcare, and eldercare. Megan Brenan, Women Still Handle Main Household Tasks in U.S., Gallup (Jan. 29, 2019). In particular, childcare negatively impacts women’s careers. For example, a 2019 study found 95% of fathers in heterosexual couples who could not find childcare continued to work, compared to 77% of mothers. Leila Schochet, The Child Care Crisis Is Keeping Women Out of the Workforce, Ctr. for Am. Progress (Mar. 28, 2019). Research also suggests organizations are less likely to hire mothers for jobs, to perceive them as competent, or to pay mothers as much as male colleagues with the same qualifications. Claire Cain Miller, The Motherhood Penalty v. Fatherhood Bonus, N.Y. Times, Sept. 16, 2014.

Below are comments from women who testified in front of the TF that illustrate this issue.

• “I sometimes don’t reveal that I’m a mom. I don’t want people to have lower expectations of me.”
• “Having to be in court until 5 PM or later means never being able to pick your children up from school.”
• “There is no chance of retaining quality women attorneys if there has to be a choice between families or work; families will always be chosen.”
• “With respect to retention and promotion, [the question] is how you make it there and still have a family.
• “I do not have children. I chose not to have kids. I have never had to explain to someone that I have to leave because I have to pick up my kid. That was indeed a significant factor in my opportunity to make choices.”
• “When I started out, all the male prosecutors I worked with had stay-at-home wives or were unmarried, so they could stay late, work on weekends, and celebrate victories in court.”
• “Our office absolutely will not allow job sharing. When I came back from having my baby, that was all I wanted.”
• “I would love to work part-time, but I’m not aware of many part-time opportunities in the public sector.”
• “I was lucky to hire an over-qualified woman to work for me as my judicial clerk. After giving birth, her main priority was her child and she said she was tired of working for men who just didn’t understand her needs.”

See Ahranjani, Initial Findings, supra.

Potential Solutions

In addition to implicit bias training, greater work schedule flexibility supports women. Even in workplaces that allow some flexibility, women and men report a stigma attached to working nonstandard schedules. Id. at 144–45.

The COVID crisis forced organizations to embrace flexibility. LeanIn.Org & McKenzie & Co., supra, at 46. Allowing employees to work from home and having flexible hours are two of the most effective things organizations report they have done to improve employee well-being. Id. Employees with more flexibility to step away from work are much less likely to be burned out. Id. Fewer employees are concerned that requesting flexible work arrangements has impacted their opportunity to advance. Id. This experience has disproved many of the previously held stereotypes in terms of productivity and responsibility. It’s important, particularly for women, that these flexible reforms remain in place, even as the COVID crisis ebbs.

Leaders in organizations and criminal justice should embrace the opportunity COVID presents to restructure the workforce to create improved parity for women. Supporting access to childcare and family leave policies and allowing for more flexibility in the “8-5 be at your desk mentality,” will help women in today’s society find parity in the workplace.

The Need for Mentorship, Sponsorship, and Allies

The Problem

A lack of sponsorship may be preventing women from advancing into leadership. A sponsor is someone who promotes a subordinate’s skills and helps advance the subordinate’s career; in turn, the sponsor reaps the benefits tied to the subordinate’s performance. Benefits of sponsorship have tended to accrue more often to men than to women. Herminia Ibarra, A Lack of Sponsorship Is Keeping Women from Advancing into Leadership, Harv. Bus. Rev. Online (Aug. 2019).

Powerful men may be more likely to sponsor other men when leadership opportunities arise given people’s tendency to gravitate to those who are like them. Id. Furthermore, women may fail to cultivate a sponsorship relationship because it can often be misconstrued as sexual interest, and/or perceptions that getting ahead through connections is inappropriate. Sylvia Ann Hewlett et al., Ctr. for Work-Life Policy, The Sponsor Effect: Breaking Through the Last Glass Ceiling (2010).

In addition, the TF’s efforts noted dynamics in the field from more experienced, powerful women who not only fail to sponsor female subordinates but are more critical of female than male subordinates. The latest research suggests that being more critical of female subordinates is a way that some powerful female leaders internalize gender discrimination they have faced in their own career. Kim Eleseller, Queen Bees Still Exist, But It is Not the Women We Need to Fix, Forbes (Aug. 30, 2021). Lastly, women who succeeded in spite of the many obstacles to their advancement are naturally inclined to tell younger women to suck it up as they did. Id. They may even view their success as deriving in part from their ability to overcome those obstacles, explained by the “What-doesn’t-kill-you-makes-you-stronger” or “Toughen Up Butter Cup” mentality. Id.

Examples of testimony given at listening sessions illustrating these phenomena are below.

• I’ve had a female judge say, ‘When you’re in my courtroom I expect you to dress like ladies: no skin. If I see skin, you’re out.’ I’ve seen female judges being harsher to female attorneys.”
• “[Even as a woman, I acknowledge] the elephant in the room is women having babies [and what that means for their productivity].”
• “If it weren’t for men who looked out for me along the way, I would not be where I am today.”
• “We need to address the generational problem of entitlement and other generational differences.”
• “The new generation forces us to look in the mirror. I had my two children 14 months apart and was back to work within three days. I have always advocated for and supported women. But when I hired a young associate to work at my small firm who got married shortly after she started and then wanted a three-week honeymoon, I reluctantly said, ‘okay.’ Then she was pregnant and wanted three months of paid leave [which is not required because of the employer size]. I even more reluctantly said, ‘okay.’ And then she wanted to talk about transitioning back to work, and I nearly lost it because I needed her back full-time. Then she was breastfeeding in the office! The male attorneys had no problem with it. I was the one with the problem, and I realized maybe I wasn’t as progressive as I thought and needed to change. She is a good lawyer and employee. I want to keep her.”

See Ahranjani, Initial Findings, supra.

While the TF recorded accounts of this surprising phenomenon, a newer generation of female leaders are rising to the challenge of creating parity in the workforce, rather than reinforcing impediments. The 2021 Women in the Workplace study found female managers spend twice as much time as men on diversity and inclusion work that falls outside of their formal job responsibilities. LeanIn.org & McKenzie & Co., supra.

Potential Solutions

In addition to evidence-based anti-bias training and workforce policy changes, having programs that help cultivate allies for women that may eventually lead to sponsorship will help move talented women forward to leadership positions. Allies can be mentors, strategizers, connectors, opportunity givers, or sponsors. Ibarra, supra. A mentor provides personal advice and support privately. Id. A strategizer shares insider knowledge about how to advance in the organization and how to fill any developmental gaps that may hinder progress. Id. A connector makes introductions to influential people within his or her network. Id. An opportunity giver secures a high-visibility project or promotion within his or her control on behalf of the individual. Id. A sponsor advocates for the individual in succession for multiple opportunities with his or her reputation at stake. Id. Sponsorship has the potential to make or break a career. Id. Leaders must intentionally become allies of high-performing women, and particularly women of color and other marginalized intersectionalities, to create parity in the workplace. Id.

Low Salaries in Criminal Law Serve as a Challenge, Especially to Attorneys Who Face Intersectionalities

The Problem

In addition to the general wage gap that women face, attorneys that practice public sector criminal law are paid less than any other types of attorneys given the hours criminal trial attorneys work. For example, the national average entry salary in 2021 for public defenders and prosecutors is $65,939 and $66,802, respectively. National Survey of Public Defender Salaries 2021, Big Law Investor (last visited Nov 22, 2021); National Survey of District Attorney Salaries 2021, Big Law Investor (last visited Nov 22, 2021).

• “The salaries are low. Many of us don’t have trust funds or parents that will pay off our student loans.”
• “Our check is not our own. It is also going to someone else. It is the family check. It is hard to live on the salaries.”
• “[In my role in hiring,] a woman with three children, very well qualified, declined the prosecutor position. It didn’t pay well enough to even cover the childcare.”

Potential Solutions

In 2021, an ABA survey documented students graduated from law school with an average of $160,000 in debt. Am. Bar Ass’n & AccessLex Inst., Student Debt: The Holistic Impact on Today’s Young Lawyer ii (2021). More than half of respondents felt financially insecure either a portion of or all the time. While most young lawyers could find $1,000 to cover a financial emergency, Black, Hispanic/Latino, and indigenous respondents were less confident in their ability to do so. Id. Low salaries combined with high student debt for lawyers makes it difficult for attorneys to enter and stay in the criminal justice field, especially women, who often must compare childcare cost to salary. Moving forward, the Public Student Loan Forgiveness Program (PSLF) may help solve some of the discrepancies between law school debt and salaries for public sector criminal law attorneys. In 2021, the Department of Education began the first wave of student loan forgiveness under PSLF, and the expectation is that the program will continue into the future. Additionally, organizations should increase pay when possible.

Compassion Fatigue, Vicarious Trauma, Burnout, and Traumatic Stress

The Problem

In the criminal justice field in particular, the jobs require exposure to the most heinous of human actions. Listening to individual clients recount their victimization, looking at videos of people raping children, reviewing case files of homicide, hearing about or responding to the aftermath of violence and other traumatic events day after day, and responding to mass violence incidents that have resulted in numerous injuries and deaths can cause vicarious trauma and traumatic stress. The Vicarious Trauma Toolkit, Off. for Victims of Crime (last visited Nov. 22, 2021). Traumatic stress comes from direct exposure to traumatic experiences. Id. Traumatic stress can result in extreme emotionality or absence of emotion, fearful-jumpy-exaggerated startle response, and flashbacks. Id. Vicarious traumatization results from indirect exposure to trauma. Id. Vicarious trauma can involve avoidance of victim/survivor, hypervigilance and fear for one’s own safety, intrusive thoughts and images, or nightmares from victims’ stories. Id.

Examples of comments from the listening sessions are below.

• “I left criminal law because I couldn’t stand seeing so many young [B]lack men go to prison.”
• “If you can’t eat a bologna sandwich while you’re reading an autopsy report, you shouldn’t work for me.”
• “This job requires that I have regular therapy.”

See Ahranjani, Initial Findings, supra.

Potential Solution

Vicarious trauma and traumatic stress are an occupational challenge for those working in the criminal justice field. Criminal justice organizations have an ethical “duty to train,” wherein workers are taught about the potential negative effects of the work and how to deal with it. Vicarious Trauma for Law Enforcement PowerPoint Presentation, US Dep’t of Just., Off. for Victims of Crime (2015). Trauma-informed organizations recognize these challenges and assume the responsibility for proactively addressing the impact of vicarious and direct trauma through policies, procedures, practices, and programs that help process trauma. Id. Criminal justice systems and organizations that work within them must become trauma-informed to retain their best workforce. In criminal justice, addressing vicarious trauma is important for women and for men, and magnified for those with intersectionality.

Conclusion

While the criminal justice field also has specialized issues that hamper the hiring, retention, and promotion of women, the TF found gender discrimination entrenched in work practices and cultural norms similar to other fields. While in some ways we have moved past our grandmother’s workplace of unbridled discrimination, we must do better for our daughters. Leaders in organizations must restructure rigid archaic workplace processes and systems to provide pathways to success. Authentic “buy-in” and demonstrative actions from the top are essential to create needed change. We must also each (1) train ourselves and others to be aware of our biases, challenge them, and track our progress; (2) work to restructure office policies to create parity; (3) ally with women and women of color and other intersectionalities in particular; and (4) educate practitioners on strategies for dealing with vicarious trauma and traumatic stress. The future can be bright, but it is upon all of us to create the change.