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Gender Bias in the Legal Profession

GENDER BIAS

IN THE

LEGAL PROFESSION

Submitted to:
Dr. Deepak Kumar Srivastava
Faculty, Woman and Law

Submitted by:
Anushree Modi
Roll No 69
Semester X
Submitted on:
9th April 2015

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Gender Bias in the Legal Profession

TABLE OF CONTENTS
Topic

Page No

Acknowledgements

Research Methodology

Introduction

Gender Bias in the Legal Profession

Constitutional Backdrop

Sexual Harassment face by Women Lawyers

Stereotyped at Work

10

Work-life balance

12

Infrastructure

13

Factors that can mitigate gender bias against women in litigation

14

Conclusion

18

Bibliography

19

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Gender Bias in the Legal Profession

ACKNOWLEDGEMENTS
The practical realization of this project has obligated the assistance of many persons. I express
my deepest regard and gratitude for our Faculty of Woman and Law. His consistent supervision,
constant inspiration and invaluable guidance have been of immense help in understanding and
carrying out the nuances of the project report. I take this opportunity to also thank the University
for providing extensive database resources in the Library and through Internet.

Ansuhree Modi
Semester-X

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Gender Bias in the Legal Profession

RESEARCH METHODOLOGY
Secondary data has been used. The study is descriptive and analytical in nature.
Books and other references have been primarily helpful in giving this project a firm structure.
Websites and articles have also been referred.

Introduction
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Gender Bias in the Legal Profession


Marry Appleby has correctly said that Law has fundamentally been a male profession; women
were welcome to join the bar so long as they recognized that it was defined by men. This
certainly holds true in India.
Though women constitute of 50% of the population of law schools, litigation has a remarkably
lower percentage of women. A survey by The Global Legal Post in 2012 found that out of
nearly 400 senior advocates designated by our countrys Supreme Court since 1962 only 5 have
been women. It also reflects that litigation as a profession, is tailored to suit a man, and even
today does not factor in a womans needs.
Inflexibility at the workplace compels women to opt out of litigation. This is because under the
garb of gender neutral politics, a woman is forced to work the same hours as her male
counterparts and not seek any licence or liberty because of her child or family. You see an
express gender bias when you consider women who do opt for litigation. Women are frowned
upon in litigation because of a stereotype created by our society that women are primarily
responsible for childcare only whereas the male is the breadwinner of the family and is bound
to be more serious about his work.
The Advocates Act, 1961 mandates the Bar Council of India to safeguard the rights, privileges,
and interests of lawyers under Section 7. It is by the virtue of this section that gender bias can be
significantly resolved by incorporating accommodating measures such as maternity benefit
schemes, mentorship programme, work-life balance, which the author elaborates in her paper.

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Gender Bias in the Legal Profession

Gender Bias in the Legal Proffesion


-There is no greater inequality than the equal treatment of unequal
-Justice Felix Frankfurter, Dennis v. United States
A womans needs are not simple nor are they the same as that of a man. To ignore this would be
akin expecting a fish to climb a tree. A fish cannot climb a tree and a woman cannot work in the
same conditions as a man could. The conditions could mean physical or psychological.
A man would not be deterred by something as minor as an unsanitary bathroom. This same
problem would not be seen as a minor problem by any woman. A recent study revealed that when
would be women litigators were asked what would make their working conditions in the
courtroom better, 93% of them wanted sanitary washroom conditions, along with more amount
of bathrooms. Is it too much to ask for?
In virtually every society, gender is a fundamental aspect of human identity and gender
stereotypes influence behaviour at often unconscious levels. These stereotypes work against
womens advancement in several respects, even among individuals and institutions fully
committed to gender equality. A related problem is that people share what psychologists label a
just world bias. They want to believe that, in the absence of special treatment, individuals
generally get what they deserve and deserve what they get. Perceptions of performance are
frequently adjusted to match observed out-comes. Individuals are also motivated to interpret
information in ways that maintain their own status and self-esteem. Lawyers who have achieved
decision making positions generally would like to believe that the system in which they have
succeeded is fair, objective and meritocratic.
Among the other challenges faced by women attempting to advance in the legal fields include
perceptions and behaviors of those in positions of power. Because women, by and large, continue
to have the primary familial responsibilities, they continue to be plagued by the perception that
they may not be as committed to the practice as their male counterparts. One male interviewee of
a litigation firm opined that women were either leaving trial practice or unable to succeed in trial
practice because they dont like the demands on their time. This opinion may very well
manifest itself in the manner and opportunities afforded to female lawyers. One interviewee
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Gender Bias in the Legal Profession


described the attitudes of the men in the firm as, why bring you along when youre just going to
leave anyway or work will no longer be a priority?
Women lawyers also face challenges in earning respect from clients. As women are sometimes
perceived as aggressively advocating for their clients, they may be seen as being overly
aggressive by the men. This perception can, at times, make their male counterparts
uncomfortable and therefore unwilling to support their advancement. Also, many women
interviewed by the Task Force believe that the good ole boy network is still alive and well such
that it creates a stumbling block to their advancement within the firm. They believe that men tend
to promote other men, instead of women, both within the firm and with clients.

CONSTITUTIONAL BACKDROP
The disparity in functioning can be argued legally as a form of discrimination, violating the
Indian constitution that guarantees equality under the Fundamental Rights in Articles 14, 15
and 16 under Part III. In fact the Supreme Court has time and again ruled against discrimination
against women especially on factors such as marriage and pregnancy arguing these to be a
natural consequence, an aspect that was the main argument in the landmark case of Airhostess
Nargesh Meerza. Despite such landmark judgments, India lacks a comprehensive antidiscrimination code such as in the United States of America that make family responsibility
discrimination illegal. Laws like the Maternity Benets Act, 1961 and Equal Remuneration Act,
1976 attempt to address the existent systemic discrimination against women in employment, but
fail to remove parities that exist between male and female in the pursuance of their career
objectives. This is because though laws or legislations can ascertain change; reect societal
norms and movement, it cannot change mindsets.1
Today to combine a career in litigation and care for families is at present an individual
responsibility, and comes with consequences that hurt ones career graph. It is a glass ceiling that
is imposed by an inexible work culture and an inherent bias that family responsibilities creates
1 Savitha Kesav Jagadeesan, Work-Life Balance, is it a Gender based issue in the legal profession?
SOUVENIR, 6th - 8th January, 2012, 56-7.
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weaker and inefficient women professionals. This requires transformation from within. The
battle is against an inert human instinct rather than against overt behaviour and that makes this
even more challenging.
Womens opportunities are limited by factors other than conscious prejudice. Major barriers include
unconscious stereotypes, inflexible workplace structures, sexual harassment, and bias. These barriers to
women legal professionals are discussed below.

SEXUAL HARASSMENT

FACED BY

WOMEN LAWYERS

They may appear to be symbols of women empowerment but they are not safe from sexual
harassment.
The term sexual harassment means a type of employment discrimination consisting in verbal
or physical abuse of a sexual nature.2
One of the first cases you learn about when studying for a law school entrance exam is Vishakha
v. State of Rajasthan3which started the talk about sexual harassment of women at workplaces.
It has historically been a well kept secret practiced by men, suffered by women, condoned by
management, and spoken by no one. It is a manifestation of power relations women are much
more likely to be victims of sexual harassment precisely because they lack power, are in a more
vulnerable and insecure position, lack self-confidence, or have been socially conditioned to
suffer in silence.4

2 Vishakha v. State of Rajasthan AIR 1997 SC 3011.


3 AIR 1997 SC 3011.
4 Sexual Harassment: Gender! A Partnership of Equals, ILO, 58 (2000) available at http://www.sundayguardian.com/analysis/indian-women-legal-lawyers-face-many-challenges (last accessed 05.04.2015)
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Gender Bias in the Legal Profession


We see that now, after the Vishakha case and Apparel Export Promotion Council v. A. K.
Chopra5, women who are sexually harassed at workplaces have an option other than quitting.
The law has equipped women with these options.
Lawyers are amongst the most educated professionals of India. The fact that females of this
profession are also victims of such a problem at their workplace is a matter of great shame. They
have little recourse other than quitting or letting whatever happens continue and praying to god
that it does not escalate.
On 15th June 2000 Sangeeta Sharma, a young lawyer practising in Hyderabad committed suicide
naming three lawyers as being directly responsible for her death in her suicide note. The cause:
sexual harassment. One of the lawyers named, the prime accused, was a senior lawyer who was
fairly well known. Before committing suicide she had spoken about the harassment to fellow
lawyers, had been asked to "forget it" by the relatively senior men and had received support from
a few women.
When Asmita, a womens collective in Hyderabad asked the Bar Council of Andhra Pradesh
amend the code of conduct of lawyers to specifically include sexual harassment within the
definition of gross misconduct, and set up mechanisms for dealing with cases, according to the
procedure and modalities laid down by the Supreme Court. The answering letter said that sexual
harassment would fall under the general definition of professional misconduct or any other
misconduct and that no changes were felt necessary6.
Fifteen years after it laid down guidelines to protect women against sexual harassment at
workplace, women advocates appealed to the Supreme Court to examine implementing them at
their workplace - the court premises.7
5 AIR 1999 SC 625.
6 Sexual Harassment in the Legal Profession, ASMITA available at
http://www.asmitacollective.in/shlp.html (last accessed on 05.04.2015)
7 Dhananjay Mahapatra, Women lawyers move Supreme Court to end harassment
in courts, Sep 9, 2012 available at http://articles.timesofindia.indiatimes.com/201208-01/india/32979732_1_women-advocates-women-lawyers-apex-court- (last
accessed 05.04.2015)
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Gender Bias in the Legal Profession


"There is no forum in SC, or the courts below, for women to address the issue of sexual
harassment experienced by them frequently at the hands of their colleagues and persons in whose
contact they come in while discharging their duties as advocates."8
It is not that such a problem occurs only in India, or the problem is due to traditional malecentric Indian society. In a study in 1989, in the United States of America, by The National Law
Journal, 60 percent of the 900 female lawyers surveyed said they had experienced some form of
sexual harassment in the workplace.
The problem of sexual harassment creates a deterrent effect on female law school graduates to
join the litigation profession.

STEREOTYPED

AT

WORK

Women are not merely a special interest group, but half the human race.9
-Bella Abzeg
In order to make sense of a complex social world, individuals rely on a variety of techniques to
categorize information. One strategy involves stereotypes, which associate certain socially
defined characteristics with identifiable groups.10

PROBLEMS CAUSED BY PREJUDICE:


The force of traditional stereotypes is reinforced by other biases in decision making. People are
more likely to notice and remember information that confirms prior assumptions than
8 ibid.
9 Deborah L. Rhode, The Unfinished Agenda, Women & the legal profession, ABA Commission on
Women in the Profession, p. 6-8.
10Irwin A.Horowitz & Kenneth S.Bordens, Social Perception: The Construction of Social
Reality,Soc.Psychol.87,91-94 (1994).
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Gender Bias in the Legal Profession


information that contradicts them. For example, attorneys who assume that women are less
committed tend to remember the times they left early, not the nights that they stayed late.
If women are underrepresented, the most psychologically convenient explanation is that they
lack the necessary qualifications and commitment.11
It is not necessary to point out that female attorneys often do not receive the same presumption
of competence or commitment as their male colleagues. A woman must work twice as hard as a
man to be taken as seriously.12
AGGRESSIVE OR NOT
A longstanding obstacle to equal opportunity involves the mismatch between characteristics
associated with women and those associated with professional success, such as assertiveness and
competitiveness. Women still face a long-standing double standard. They risk criticism for being
too soft or too strident, too aggressive or not aggressive enough. Many of the women
interviewed related the difficulty of straddling the fine line between being assertive, but not
being labeled as aggressive.13 What appears assertive in a man often appears abrasive in a
woman. A woman reported that when she raised her voice in court to argue on behalf of her
client, she was told not to be shrill.

PROBLEMS FACED BY WORKING MOTHERS


A woman reported, her male partners as well as her female partners without children seemed to
think that her career was tossed out with the placenta after she had her baby.14

11 supra note 9, at p. 10.


12A Career in the Courtroom: A Different Model for the Success of Women Who Try
Cases at
http://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/Women_in_the
_Courtroom.authcheckdam.pdf (last accessed 05.04.2015) p. 14.
13 supra note 12.
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Gender Bias in the Legal Profession


Most working women feel that the expectation that fathers will remain fully committed to their
careers may sometimes give them greater leeway than mothers in seeking modest
accommodations for family needs.
For anyone to rise in the profession performance is the key factor but in respect to women once
they undertake maternal responsibility there is an inert tendency to view them rst as mothers
and then as professionals with limited ambition. Their performance is viewed as inversely
proportionate to their performance or under performance in their domestic sphere.
Women in litigation suffered as their peers go ahead, they lose out on clients who preferred to opt
for lawyers who were available. According to a woman, who had rejoined litigation after her
maternity leave, The work-flow was cut as clients were not sure whether I would be able to
manage work. There was a perception that I would not be regular in court which I had to combat
by simply being in court even when there was really nothing much to do.

WORK-LIFE

BALANCE

Women lawyers dont have wives to fall back on.


The work-life balance comes across as a major place where the problems created by just world
bias come into play.
It is women who try to juggle both home and work responsibilities; they try to increase
efficiency during their work hours to nish their load to get home in time to spend evenings with
their children.
Advocate Phiroza Anklesaria way back in 1985 stated that the burden of domestic duties and
cares of the family does not leave women advocates with adequate time for thought and study of
the law. So when a woman reduces her workload it does not necessarily signal reduced
professional commitment.

14ibid.
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Ironically, in a recent survey of large law firms, several women noted with resentment that when
male colleagues wanted time off in the middle of the day for family reasons, they were thought
caring and devoted or cute and endearing, but when women left for similar reasons, they were
typed as unreliable and uncommitted.
An ideal male worker is a person who is willing to dedicate as many hours as it takes at the
workplace on the assumption that there is someone else looking after responsibilities back
home. Ms. Swagatha Raha stressed on the need for a strong support system at home in order to
succeed at work. The assumption is that there is a wife back home, but female lawyers dont
have any such wives to fall back on.15
Men tend to work with the knowledge that greater professional focus means visibility in the
workplace and therefore they have a more spontaneous approach to work hours. They can afford
to commit long hours and put families in the back burner as they are released from domestic
burdens with a woman at home ready to balance work life for them. Women tend not to or cannot
create an impression of open-ended availability and therefore their commitment is questioned
making her to strive more to prove herself time and time again about her efficiency and
ambitions at each stage.

INFRASTRUCTURE
The infrastructural facilities that a woman requires are very different from what men require. It is
not the question of want; it is a question of need. A woman needs certain infrastructural facilities,
especially pregnant women and new mothers.

SANITARY BATHROOMS
In her autobiography, titled On Balance, Justice Leila Seth described how a musty" storeroom
was passed off as the womens washroom. More than five decades later, most High Courts and
15 Women lawyers don't have wives! available at
http://mylaw.net/Article/Women_lawyers_dont_have_wives/ (last accessed on 05.04.2015)

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lower courts have abysmal working conditions, especially with respect to sanitation, making it
impossible for women to negotiate the court halls.16

MORE FACILITIES FOR WORKING MOTHERS


A maternity leave allows a woman six weeks of paid leave before she had to get back to work.
Even self-employed women cannot take more than two months off after the birth of their
children. The law itself gives a woman extra break, right after she returns from maternity leave
for a nursing break.
Women with children over one year old and who want to work might not have supportive
families that can allow them to go to work and leave their child home. They might not be in a
financial position to afford day-care either.
Law-firms might give their women employees an acceptable option where they can bring their
child to their place of work for a crche or a playground or a day-care centre. It is the
independent litigating women who work in and out of the court all-day long. She has very few
options. This is usually the problem only for mothers, not father, because they have their wives
to fall back on.

CRCHE FACILITIES
The other factor that ranked high on the priority list for most women was a crche facilities.
72% of the woman lawyers said in a survey17 agreed that a crche facility within the court
precincts would make the profession a lot more conducive for women. It would aid in curtailing
the exodus of young women lawyers from the practice.18
16 Challenges faced
17 Makhija and Raha, Gender Diversity in the Indian Legal Sector, Rainmaker, 2012
18 ibid.
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BABY CHANGING STATIONS AND BREAST-FEEDING ROOMS


Additional facilities such as baby changing-rooms and a room where women could breastfeed
their children, were considered important infrastructural requirements by respondents in the
survey conducted by Swagatha Raha & Sonal Makhija on women legal practitioners.19

FACTORS

THAT CAN MITIGATE GENDER BIAS AGAINST WOMEN IN

LITIGATION

SOLUTION TO WOMAN WHO FACE RESENTMENT AFTER TAKING A MATERNITY LEAVE


Women face resentment also during maternity leave, especially in cases where there is no one to
handle their work in their absence. If there is no cover for her, then the colleagues come to resent
her for that and are less cooperative after she is back after the three-month break. It is seen as a
vacation. Unless the organisation provides a cover and emphasises that maternity break is not a
negative thing, but it is seen as business as usual, things will not change. In such cases
organisations should encourage joint responsibility or charge on projects instead of making one
person responsible. This will ensure that work is taken care of without resentement. According to
one of our respondents working in a law firm, a shift in perception can come only if employers
frame a policy to support them and not question commitment of a woman.

SOLUTION TO WOMEN LAWYERS AND WORK LIFE BALANCE.


Internal barriers imposed are due to the ambivalence of women as they juggle work and family
and they cannot be broken overnight, but if these can be recognised 1/3 rd of the battle is won.
There is no dispute that women who have survived the work life tussle are those that have had
strong family support but even in this there is a general notion that some sacrices have been
made.
19 supra note .
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If reduction in women lawyer attrition levels is desired. the profession needs to be made more
family friendly, not just woman friendly, the institution of family free model of professional
growth should give way to improvement of work-life, after all a happy person is a more happy
employee and this will only lead to increase in efficiency.
The Delhi High Courts proposal to set up a crche for the day care of children of women
advocates and court employees is welcome as is Amarchand Mangaldasss Delhi ofce launch of
a day care facility. But these are mere drops in the ocean, what is needed is a sea change in
attitude not only of rm culture but of society and us personally.20

SOLUTION FOR INCREASING THE INFRASTRUCTURAL FACILITIES IN COURTS


In order to understand how women lawyers could be encouraged to join court practice, when
asked to rank measures that they feel should be introduced to make courtrooms conducive for
women in litigation, the following was found
Sanitised toilets for women on each floor of the court premises are necessary to make courts
more accessible to women lawyers. At the moment womens rest rooms in most courts lack in
sanitation and are tow few. In most cases, the womens rest rooms are located at the end of the
court corridor or in one floor but not all. Given the increasing number of women in litigation,
most rest rooms are crowded. This includes the Bangalore City Civil Court womens room,
which is cramped during lunch hour with little space for lawyers to even negotiate their way to
the lockers.
Additional facilities such as baby changing-rooms and a room where women could breastfeed
their children are considered important infrastructural requirements by respondents. Judges who
are more accommodating and sensitive to pregnant women make courts more conducive.
Women lawyers also feel that the sensitivity of their colleagues at the time of pregnancy, which
could include assisting in taking adjournments or handling matters in courts, would help.

20 Work-Life Balance, is it a Gender based issue in the legal profession?


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The Bar Council of India should do more to encourage more women to join litigation. They
should a forum where issues of gender bias and discrimination, including cases of sexual
harassment could be raised and addressed. They should also encourage and nominate women
lawyers for designation to senior counsel and the higher judiciary. Young women lawyers could
be helped at the start of their careers by encouraging the empanelment of women by
organisations.
Unlike some law firms and corporations that have policies on mentoring young associates and
employees, litigation works primarily on an individual practitioner basis with little support from
their peers. In the practice of law there is very often a waiting period, as a result of which the
economic background of a young lawyer plays a huge role in the choice of career. Waiting
period may not be six months. It may be three years. Advocate Kothari suggested, [T]here
could be a mentoring group of members in the Bar where one could have a system of referring
ones cases to other litigators for a short period during the maternity break. Also it would be good
to have some formal support systems such as asking the court registry for long adjournments in
cases, which are not urgent, on account of one's maternity leave, so that women litigators are not
always dependent on judges granting adjournments. There could be more support in providing
access to child care support such as maids, nannies, drivers, etcetera, and maybe the womens bar
association could have a directory for such services that it could pass on to all women litigators.

MENTORSHIP
A woman, who is a proprietor of a Delhi-based law firm, said that mentorship can help cope
with work and child-related anxieties, and also post-natal depression. A respondent at a senior
position in a reputed company felt that mentorship could definitely take away some stress that
working women feel about not being able to devote sufficient time to their children and maintain
a proper work-life balance. When you hear from someone who has been through the same
experience, it helps cope with the situation better. Others felt that it could help recognise the
potential of employees, help transition from maternal leave to work, and also chart their growth
within the organisation more effectively.

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Mentorship programmes could provide women the much-needed support in the workspace and
also help boost morale and also encourage women to stay in the profession. Women transitioning
from their maternity leave to work should have a special mentor assigned for a minimum of six
months to ensure that women have someone to reach out to. Mentors should be assigned the task
of re-orienting the women back into work. This should include ensuring retention of good female
talent as part of their annual targets.

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Gender Bias in the Legal Profession

CONCLUSION
The Advocates Act, 1961 mandates the Bar Council of India to safeguard the rights, privileges,
and interests of lawyers under Section 7. In furtherance of their statutory mandate, the Bar
Council of India and State Bar Councils should take the following measures to support the entry
and growth of women in litigation
1. Provide crche facilities in courtrooms and make them available to both women and men
lawyers. They should be modestly-priced paid crches.
2. Ensure that sanitation facilities within the courts are improved and that there are rest rooms for
women lawyers on every floor.
3. Take steps to improve the infrastructure facilities in court premises to ensure that they are
disabled-friendly and accessible.
4. Create a forum to promote interaction of women lawyers with eminent members of the Bar.
5. Establish and publicise a committee to receive complaints of sexual harassment.
6. Conduct consultations at the national and state level to take in to consideration viewpoints of
women lawyers on measures that must be taken to make to make the profession women friend

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Gender Bias in the Legal Profession

BIBLIOGRAPHY

Savitha Kesav Jagadeesan, Work-Life Balance, is it a Gender based issue in the legal
profession? SOUVENIR, 6th - 8th January, 2012, 56-7.

Sexual Harassment: Gender! A Partnership of Equals, ILO, 58 (2000) available at


http://www.sunday-guardian.com/analysis/indian-women-legal-lawyers-face-manychallenges (last accessed 05.04.2015)

Sexual Harassment in the Legal Profession, ASMITA available at


http://www.asmitacollective.in/shlp.html (last accessed on 05.04.2015)

Dhananjay Mahapatra, Women lawyers move Supreme Court to end harassment in


courts, Sep 9, 2012 available at http://articles.timesofindia.indiatimes.com/2012-0801/india/32979732_1_women-advocates-women-lawyers-apex-court- (last accessed
05.04.2015)

Deborah L. Rhode, The Unfinished Agenda, Women & the legal profession, ABA
Commission on Women in the Profession, p. 6-8.

Irwin A.Horowitz & Kenneth S.Bordens, Social Perception: The Construction of Social
Reality,Soc.Psychol.87,91-94 (1994).

A Career in the Courtroom: A Different Model for the Success of Women Who Try
Cases at http://www.americanbar.org/content/dam/aba/migrated/marketresearch/Public
Documents/Women_in_the_Courtroom.authcheckdam.pdf (last accessed 05.04.2015) p.
14.

Women

lawyers

don't

have

wives!

http://mylaw.net/Article/Women_lawyers_dont_have_wives/
05.04.2105)

Page 20

available
(last

accessed

at
on