Law and Human Behavior, Vol. 19, No.

5, 1995

Gender Bias in Courtroom Dynamics*

Stephanie Riger,t Pennie Foster-Fishman,t

Julie Nelson-Kuna,t and Barbara Curran~

Respondents to numerous surveys about courtroom interaction have identified gender bias as a serious
problem in the courts. Consistently, women perceive more bias than do men. To explore the impor-
tance of gender, role (judge vs. attorney), experience with bias, and age in predicting perceptions of
gender bias in the courtroom, we conducted secondary analyses of data from a survey of judges and
attorneys in Illinois. Three dimensions of bias were identified: Presence of Bias, Optimism (belief that
bias is decreasing), and Instrumental Bias (use of biased behavior as a trial tactic). Although role, age,
and experience had some importance in explaining the scores on these three factors, gender offered the
greatest predictive power. Implications for future research and for ending bias in courtroom interaction
are discussed.

The use of a "reasonable woman" standard, adopted by several courts to deter-

mine whether an environment is sufficiently hostile to warrant claims of sexual
harassment, rests on the presumption that men and women differ in their percep-
tion of potentially harassing behavior at work (Gutek & O'Connor, 1995). Social
science evidence for this presumption indicates that, although both women and
men agree that blatant behaviors involving sexual coercion or bribery constitute
harassment, a gender gap exists with respect to more subtle or ambiguous behav-
iors. Women are more likely than men to see these subtle behaviors, such as
sexual teasing or looks or gestures, as harassment. Yet these differences are small;
within-gender variation abounds (Gutek & O'Connor, 1995); and contradictory
evidence exists (e.g., Baker, Terpstra, & Cutler, 1990; Terpstra & Baker, 1987).

* This research was completed with support from the Office of Social Science Research, University of
Illinois at Chicago. Address correspondence to Stephanie Riger, Women's Studies Program (M/C
360), University of Illinois at Chicago, Room 1022, Behavioral Sciences Building, 1007 W. Harrison
St., Chicago, IL 60607-7137 (Internet address: Stephanie.Riger~uic.edu).
? University of Illinois at Chicago.
~t American Bar Foundation.

465

0147-7307/9.';/1000-0465507.50/I9 1995 Amedcan Psychology-Law Society/Division41 of the American Psychological Association

466 RIGER ET AL.

Perhaps some of the anomalies in the findings can be explained if we go

beyond mere identification of gender differences in perceptions to an understand-
ing of why men and women differ. As Jacklin (1981) pointed out, many variables
are confounded with gender; these, rather than gender, may be the true source of
difference.
This study examines the relationship of gender, experience with bias, age,
and role (i.e., attorney or judge) to perceptions of biased treatment of f e m a l e
attorneys in the courtroom. Spurred by the National Organization for Women's
National Judicial Education Program to Promote Equality for Men and Women in
the Courts (established in 1980), many states have created task forces to explore
the pervasiveness of gender bias in aspects of court functioning and to use the
findings as the basis for judicial education (for a history of the gender bias task
force movement, see Swent, 199t). By January, 1994, task forces in 27 states and
the District of Columbia had completed reports on gender bias in state courts, and
the federal courts are now embarking on similar studies (Slind-Flor, 1992). The
consistent conclusion across states is that gender bias is a pervasive problem in
the courts, particularly with respect to issues of domestic violence, divorce eco-
nomics, child custody, and courtroom dynamics (Shafran, 1987; Wikler, 1989),
and that women perceive more bias than do men (Defeis, with Breen, Gibbons,
Koon, & Schwatzman, n.d.).
Women in many professions have complained about subtle, everyday behav-
iors that leave them feeling undervalued or ignored, such as not attending to their
opinions in meetings or not including them in social gatherings in which work is
also discussed. In the courtroom, insulting or discriminatory treatment may come
from several sources. Judges' comments, tone of voice, or nonverbal body lan-
guage may demean female lawyers or may emphasize their ornamental role or in
other ways disparage their status. In some cases, judges' actions have been so
extreme as to elicit negative newspaper coverage or even public censure (Angel,
1991; Cook, 1981). Studies in New Jersey and New York found that male attor-
neys are the most frequent source of gender-biased behaviors (Schafran, 1987).
Court observers in Rhode Island noted 1.64 examples of gender bias per hour of
court, mostly coming from attorneys. The more men present in the courtroom, the
more frequent the incidents of bias (Breton, 1986).
Although the state task force findings provide a necessary and useful descrip-
tion of the perceived prevalence of behaviors in the courtroom that convey in-
sulting, degrading, or sexist attitudes about women, they do not go beyond a
preliminary level of problem documentation. Biased behaviors may be arrayed on
distinct dimensions, yet the state task forces treat gender bias as a unidimensional
construct. Research in other domains has identified multiple dimensions of biased
behavior. For example, in a national survey of college students, Till (1980) iden-
tified five types of sexual harassment (gender harassment, seductive behavior,
sexual bribery, sexual coercion, and sexual imposition); Stokes, Riger, and Sul-
livan (forthcoming) distinguished five domains of discriminatory behavior toward
women in corporate settings (dual standards and opportunities; sexist attitudes
and comments; discrimination in informal socializing; difficulty in balancing work
and personal obligations; and the presence or absence of remediation policies and
GENDER BIAS 467

practices). We expect that gender bias in the courts exists on several dimensions
as well. The first purpose of this study, therefore, is to examine the multidimen-
sionality of gender bias.
The second purpose of this study is to identify correlates of differences in
perceptions of bias. Experience with bias may affect perceptions; it is likely that
those who have been targets of harassment or discrimination are more likely to
believe it occurs. Because victims of harassment at work are overwhelmingly
female (Fitzgerald & Shullman, 1993), women are more likely than men to per-
ceive harassment (Konrad & Gutek, 1986; Murrell & Dietz-Uhler, 1993). There-
fore, we expect women to perceive more biased behaviors in the courtroom than
men (across all dimensions).
A second factor possibly related to perceptions of bias is role. In a study
comparing students' and workers' responses, Baker, Terpstra, & Cutler (1990)
found that role differences rather than gender differences were related to percep-
tions of harassment. Most judges are male, making it possible that differences that
are truly due to role appear to be gender differences when role is not assessed.
However, one's role may also affect one's experiences of harassment. Those in a
position of authority are less likely than subordinates to be the targets of discrim-
inatory behavior. Consequently, those individuals in high-status roles may be less
likely to perceive bias than those lower in a hierarchy. Because female judges are
less likely than female attorneys to be subject to biased behavior in court, we
expect that they will be less likely to perceive bias than female attorneys. Those
who are least likely to be targets, male judges, should be least likely to believe that
bias exists in the courtroom. Role (and gender) may be confounded with age.
Since entry of women into law schools in large numbers has happened only in
recent years, gender or status differences in perceptions may be masking differ-
ences among age cohorts. Younger (or more recently accredited) lawyers, who
went through law school at a time when sex discrimination was highly salient in
society, may be more likely to notice bias or interpret incidents as signs of dis-
crimination than those who are older or farther in years from their legal training.
Therefore, we expect younger lawyers to perceive more bias than those who are
older.
Here we report the results of a secondary analysis of data on courtroom
dynamics collected by the Illinois Task Force on Gender Bias in the Courts. The
data used in this study were not collected to test the hypotheses described above
(and so do not perfectly fit the research questions), yet they offer the opportunity
to explore these issues with a large-scale data set involving an actual situation.
Many studies of perceptions of bias use small samples of college students rating
hypothetical vignettes; although these samples may be adequate for research
purposes, they lack external validity.

METHOD

The data for these analyses were collected in a mailed survey conducted by
the American Bar Foundation for the Illinois Task Force on Gender Bias in the
468 RIGER ET AL.

Courts. The purpose of the survey was to elicit systematic information about the
magnitude, scope, and effects of gender inequality in Illinois courts as perceived
by both Illinois judges and attorneys. Questions on the survey asked males about
observations of, and females about experiences with, gender-based differential
behavior in the courtroom. Questions also were asked about demographic infor-
mation and attitudes toward gender bias. The latter were measured by asking
respondents to indicate the extent of their agreement with 24 statements describ-
ing the behavior and attitudes of judges, lawyers, and other participants in the
courtroom (e.g., "Female counsel are unduly sensitive and tend to interpret re-
marks and behavior of male judges or male attorneys as sexist."). Respondents
used a 5-point Likert scale anchored by "strongly agree" and "strongly dis-
agree." Space was provided at the end of the survey for respondents to write
comments.

Sample
Two samples were surveyed: Illinois judges and attorneys. The judges' sam-
ple consisted of all Supreme Court, Appellate Court, Circuit Court, and Associate
judges in the state of Illinois except the 15 judges who were on the task force (N
= 819). Based on given names of judges, females comprised between 7% and 8%
of this group. The overall response rate by judges was 46%, with 378 useable
questionnaires returned. The response rate was lower in the Cook County Circuit
(37%) (including Chicago) than in other Circuits combined (51%).
The sample of lawyers was selected with three goals: (a) to obtain adequate
numbers of females since they comprised only 20% of Illinois lawyers in 1989; (b)
to ensure that iitigators would be well represented because the survey asked about
court processes; and (c) to ensure that lawyers outside of Cook County would be
represented. Illinois lawyers are highly concentrated in Cook County and, in
particular, the overwhelming majority (82%) of female lawyers are located in Cook
County. Many more lawyers in Cook County than outside of Cook County work
in settings in which they do not engage in litigation. Therefore, to ensure the
inclusion of litigators and women, a larger number of Cook County lawyers than
those not located in Cook County was surveyed; to ensure the inclusion of non-
Cook County lawyers, they were sampled separately. Two subsamples were
drawn: (a) approximately 2,000 lawyers in Cook County; and (b) 1,000 lawyers
outside of Cook County. The response rate for lawyers within Cook County was
28%; for those outside Cook County, 38%. Overall, 34% of females responded to
the survey compared to 32% of males. For purposes of the analyses presented
here, the Cook County and non-Cook County samples were combined.
Since these analyses focused on attitudes toward gender bias, respondents
who failed to answer at least 50% of these items were deleted from the sample,
resulting in a total N of 351 judges and 913 lawyers. Respondents did not differ
significantly from nonrespondents (including those failing to answer 50% of the
attitudinal items) with respect to employment and age. The median age of male
respondents was 40 years, of female respondents, 35 years. The majority of both
male and female respondents work in private practice settings. Most of the law-
GENDER BIAS 469

yers who responded to the mailing but did not return usable questionnaires indi-
cated that they did not handle cases in Illinois courts or had done so infrequently
or only in the past while the survey asked them to respond based on their expe-
rience in the last 12 months. Relatively low response rates make it impossible to
draw firm conclusions from the data; however, these response rates are roughly
comparable to those achieved in surveys of members of the American Bar Asso-
ciation (J. Martin, personal communication, July 22, 1994).

RESULTS

Dimensionality of Gender Bias

To assess the dimensionality of perceptions, principal components analysis
using varimax rotation was conducted on the survey items that measured attitudes
toward gender bias. Because the 24 survey items regarding attitudes toward gen-
der bias were identical in all surveys, the judges' and lawyers' survey samples
were combined in these analyses. Prior to conducting the factor analyses, how-
ever, five pairs of items were reconfigured into five single items. These item pairs
were all highly correlated (r /> .8) and presented jointly in the survey. For in-
stance, questions 5 and 6 in the survey asked: "Female counsel are more likely
than male counsel of the same age, experience, and competence to be subject to
hostile treatment from: (5) male judges; (6) male counsel." The responses to these
two items were averaged, thus creating a single item. The other four pairs of items
were identical in format to the above and were thus treated similarly.
To determine the most appropriate factor solution for the remaining 19 items,
exploratory principal components analyses (PCA) with varimax rotation were
conducted. Evaluation of the eigenvalues from the initial PCA provided a first
estimate of the number of factors important in this solution. In that run, the
eigenvalue size dropped below l after the third factor. Using the criterion that an
eigenvalue must exceed 1 (e.g., Tabachnick & Fidell, 1989), these results evi-
denced that at most a three-factor solution would be appropriate. Consequently,
subsequent analyses requesting a two- and three-factor solution were conducted.
To assess the appropriateness of these solutions, the structural integrity and
psychological meaningfulness of each solution were evaluated. Specifically, a
solution that provided a simple structure was sought (Thurstone, 1947). If a simple
structure was present, several variables would highly correlate with each factor
and each variable would correlate highly with only one factor. The criteria
adopted to evaluate items according to the simple structure paradigm in this
analysis included the following: (l) the factor loading between a variable and its
most significant factor must exceed .55; and (2) the correlation between a variable
and the other factors must be less than .25. Items that did not meet these criteria
were deleted and the two- and three-factor solutions were recomputed.
Overall, the three-factor solution (presented in Table l) offered the best so-
lution, accounting for 55.4% of the variance. The three factors included a Pres-
ence o f Bias factor, which consisted of eight items (see Table l) that reflected the
470 R1GER ET AL.

Table 1. Factor Analysis o f G e n d e r Bias Attitude Items

Presence Instrumental
of bias bias Optimism
Presence o f bias items
Stereotypes about the appropriate social role of
women and about women's strengths and
weaknesses are among the unconscious forces that
affect the behavior of judges and attorneys toward
women in court. .805 .115 -.015
Sexist behavior toward women in court influences
jurors by confirming deeply rooted notions about
the credibility and the authoritativeness of women. .780 .018 -.028
Female counsel are more likely than male counsel of
the same age, experience, and competence to be
subjected to hostile treatment by male judges and
by male counsel." .769 .061 -.139
Judges continue to be influenced by traditional
beliefs about the social role and nature of women,
and such beliefs affect decisions in cases involving
female litigants' interests. .760 .097 -.121
Sometimes gender bias in the courts disadvantages
men, but most often it disadvantages women. .731 -.158 9
Male counsel are presumed to be competent
litigators until proven otherwise, while female
counsel must establish their competence. .706 .046 -.214
Overchivalrous behavior toward female counsel is a
reflection of discomfort with women attorneys in
the courtroom. .660 .002 .053
Comments in the courtroom on a female counsel's
dress or appearance focus attention on her as a
woman and diminish her stature as a professional
in the eyes of litigants, witnesses, and jurors. .612 -.181 .239

Instrumental bias items

Female counsel are unduly sensitive and tend to
interpret remarks and behavior of male judges or
male attorneys as sexist. -.083 .768 .017
Female counsel are just as likely as male counsel to
take advantage of sex stereotyping when dealing
with female witnesses. -.003 .702 .169
Sexist behavior by male counsel toward female
counsel is a trial tactic aimed at distracting female
counsel and does not necessarily reflect underlying
animus toward female attorneys. -.013 .603 .024

Optimism items
Sensitivity to, and concern about, gender bias in the
justice system has increased significantly in recent
years among judges, among attorneys. ~ -.008 .072 .817
Hostile or overchivalrous treatment of female
counsel by judges (by male counsel) has declined
as the number of female attorneys has grown, a ~ .041 9142 9
Eigenvalues. 4.289 19 !.314
Percent of total variance explained. 32.97 11 9 1 i .49
a Indicates item that resulted from averaging two items in the survey.
GENDER BIAS 471

belief that gender bias actually does occur in the judicial system. Overall, this
factor accounted for 32.9% of the variance. The coefficient alpha for these eight
items was .87, suggesting that these eight items represent an internally reliable
measure.
Comments written on the survey confirm this dimension: As one female
attorney put it, "credibility of and respect for w o m e n m a s judges, lawyers, liti-
gants, and witnesses--is a continuing problem." Another wrote, "During law
association meetings the congenial relationship between judges and male attor-
neys is quite apparent. They play golf together, their children participate in sports
together, etc . . . . It is only natural for a judge to trust or respect someone he
knows more than he trusts a complete stranger." A male attorney stated "Female
attorneys are treated by both litigants and judges as a step below male attorneys.
They are not allowed on the 'inner circle'."
The second factor, labeled the Instrumental Bias dimension, included three
items (see Table 1) that reflect the belief that gender bias is simply a trial tactic,
used to discredit the opposing attorney, and that women are unduly sensitive. This
dimension, which accounted for 11.9% of the variance, demonstrated a reliable
internal consistency, with a coefficient alpha of .815. The comments of a judge
reflected this dimension: " I n my experience, female counsel are not above taking
advantage of their gender if the opportunity arises, especially before a j u r y . "
The third factor, labeled the Optimism dimension, consisted of two items (see
Table 1) that addressed whether or not gender bias is decreasing in the courtroom.
This factor accounted for 11.5% of the variance and had an interitem correlation
of .823, indicating considerable internal reliability. One judge reflected this dimen-
sion in his comment:

There was one female in my class at law s c h o o l . . . When I attended my daughter-in-

law's graduation from the same school more than fifty percent of the graduates were
f e m a l e . . . About ten years ago when an influx of female attorneys occurred in the legal
professions, there was noticeable resistance to their acceptance. Time and experience
has eliminated that resistance and prejudice.

A female respondent confirmed this view in comments on the survey:

Things have improved vastly in the last two years. Before that I was pinched, patted,
asked for dates, dismissed as incompetent and harassed by judges and attorneys alike.

Another echoed a similar sentiment:

Ten years ago my responses to this long overdue survey questionnaire would have been
much different. The attitudes of both judges and attorneys have vastly improved.

To determine the relationship among these three dimensions, Pearson corre-

lations using unit weightings (as computed by average item scores) were run.
Overall, it appears that minimal covariance occurs. A significant correlation was
found between only two of the factors, Optimism and Instrumental Bias (r = . 17,
p ~< .01), and these two variables share only 3% of their variance. Thus, it appears
that these three factors do represent distinct facets of gender bias.
472 RIGER ET AL.

Table 2. Cell Means, Standard Deviations, and Cell Sizes for Gender Bias Dimensions
Role
Gender Mean SD N~
Presence of bias dimension
Lawyers F 1.23 .63 202
M 3.31 .84 711
Judges F 2.60 .71 28
N 3.47 .74 323
Instrumental dimension
Lawyers F 3.37 .69 202
M 2,93 .75 702
Judges F 3.34 .81 28
M 3.22 .77 323
Optimism dimension
Lawyers F 2.61 .83 201
M 2.25 .82 704
Judges F 1.91 .79 28
M 2.02 .82 318
" N's vary slightly because of missing data. Scores range from I to 5 (1 = agree strongly; 5 = disagree
strongly).

Correlates of Gender Bias

To u n d e r s t a n d how gender and professional role (lawyer and judge) relate to
the three dimensions identified above, a series of 2 x 2 A N O V A s were con-
ducted, i F o r each of the three dimensions, a c o m p o s i t e score was c o m p u t e d by
averaging the items. Table 2 s u m m a r i z e s the cell means, standard deviations, and
cell sizes for e a c h of the A N O V A s discussed below.
For the dimension P r e s e n c e o f Bi a s, significant main effects for both gender,
F(1, 1260) = 138.13, p < .01, and role, F ( I , 1260) = 9.817, p < .01, were found.
F e m a l e s (M = 2.42) more strongly agreed that gender bias existed in the court-
r o o m s than males (M = 3.39). At the same time, lawyers (M = 2.77) were m o r e
likely to agree that gender bias existed in the c o u r t r o o m s than judges (M = 3.04).
N o significant interaction b e t w e e n gender and role occurred. Although both gen-
der and role a p p e a r e d to be important predictors of attitudes concerning w h e t h e r
or not g e n d e r bias occurs in the judicial s y s t e m , they differed in predictive
strength. E x a m i n a t i o n o f the semipartial correlations revealed that gender was a
m o r e important predictor. Although both variables in the A N O V A model a c c o u n t
for a p p r o x i m a t e l y 23% o f the variance in the p e r c e p t i o n of bias, gender alone
a c c o u n t e d for 88% o f this 23% shared variance. Role influences o n e ' s attitudes
regarding the perception of gender bias, yet gender a p p e a r s to be m u c h m o r e
i m p o r t a n t in understanding attitude differences in this dimension.
While gender, F ( I , 1251) = 12.887, p < .01, was significantly related to the
I n s t r u m e n t a l dimension, role was not. Males (M = 3.07) were m o r e likely t h a n

While this practice of multiple testing can potentially inflate Type I error rates, the low or insignif-
icant correlations among the dependent variables somewhat minimize this risk in this study.
GENDER BIAS 473

females (M = 3.36) to believe that gender bias is merely an instrument used in the
courtroom. Meanwhile, although lawyers (M = 3.15) appeared to have more of a
tendency than judges (M = 3.28) to agree that gender bias is a tactic used in the
courtrooms, these differences are not significant. However, a significant interac-
tion between gender and role does exist in the Instrumental dimension, F(1, 1251)
= 3.939, p < .05. Post-hoc analyses, using the LSD method, reveal that role
differentially influences male and female beliefs about instrumental bias. Neither
female lawyers (M = 3.37) nor female judges (M = 3.34) believed that bias is
merely a trial tactic. However, male lawyers (M = 2.93) more strongly believed
that gender bias is a trial tactic than male judges (M = 3.22), F(l, 1251) = 33.685,
p < .01.
A significant main effect for role, F(I, 1247) = 29.091, p < .01, but not for
gender was found in the Optimism dimension. Judges (M = 1.96) were more
optimistic about gender bias in the judicial system than lawyers (M = 2.432).
However, a significant interaction occurred between gender and role, F(1, 1247)
= 7.243, p < .01. Post-hoc analyses indicated that this significant interaction
occurred because gender more significantly influenced the optimism of lawyers
than judges. Female lawyers (M = 2.61) were less optimistic than male lawyers
(M = 2.25), F(1,1247) = 30.072, p ~< .01. However, perceptions of male judges
(M = 2.02) and female judges (M = 1.90) were not significantly different. In other
words, those in higher-status positions are more similar than those lower in the
hierarchy in their belief that the system is improving.
I n f l u e n c e of Age

To examine the possible confound of age differences on the above effects, we

first conducted two independent t-tests to explore if significant age differences
existed. Males (M = 49.429) were found to be significantly older than females (M
= 40.052), t (1246) = 10.793, p ~< .01, and judges (M = 54.383) significantly older
than lawyers (M = 45.271), t (1246) = 12.123, p ~< .01.
To assess the influence of gender and role on the dimensions of gender bias
after controlling for these age differences, we conducted a series of ANCOVAs
with gender and role as the independent variables and age as the covariate. These
analyses allowed us to determine if the gender and role effects discussed above
were merely the result of within-group age differences.
Across all three dimensions--Presence of Bias, Instrumental Bias, and Op-
timism-the main effects and interactions discussed above were not eliminated
after adjusting for the covariate. (See Table 3 for a summary of the ANCOVAs'
results.) In other words, the effect of gender and role on the dimensions of gender
bias appear to be more than mere age differences naturally found within these
groups in the judicial system. In fact, across the three dimensions, age was only
significantly associated with the Presence of Bias factor, F(1, 1244) = 15.19, p ~<
.01. As their age increased, males, females, lawyers, and judges were all more
likely to believe that gender bias does not occur within the courtrooms. Thus, it
appears that although significant age differences exist among the professionals
within the courtroom, these age differences only minimally influence their atti-
tudes about gender bias.
474 R1GER ET AL.

Table 3. ANCOVA Results

F d.C"a

Presence of bias dimension

Role 5.28* (l, 1243)
Gender 120.02"* (I, 1243)
Gender x Role !.46 (1, 1243)
Age (covariate) 15.03"* (1, 1243)
Instrumental dimension
Role 3.45 (1, 1239)
Gender 11.20"* (I, 1239)
Gender x Role 4.04* (1, !239)
Age (covariate) .56 (1, 1239)
Optimism dimension
Role 31.93"* (1, 1230)
Gender 2.99 (I, 1230)
Gender x Role 7.38** (!, 1230)
Age (covariate) 2.76 (1, 1230)
a Degrees of freedom vary slightly due to missing data.
* p <~ .05; **p <~ .01.

Experience with Bias

Another area explored in this study is the relationship between one's expe-
rience with and attitudes about gender bias. Because the surveys investigated the
female lawyers' personal experiences with gender bias and the judges' and male
lawyers' observations of gender bias, we analyzed each survey sample separately.
Within each survey, experiences with gender bias were measured by asking
respondents to indicate which of several biased behaviors they had observed
(male lawyers and judges) or experienced (female lawyers) in the courtroom
within the last 12 months. This section of the survey asked only respondents who
had experiences within the courtroom in the last 12 months to reply. Moreover,
judges and lawyers were asked to respond only if a female attorney was present
at least once in the courtroom during that time. Because these criteria were not
required for the attitude items, sample sizes are significantly smaller in this sec-
tion. Male lawyers commented on the gender-biased behavior of judges; judges
evaluated the gender, biased behavior of male lawyers. Female lawyers evaluated
their experiences with both male lawyers and judges. All questions were dichot-
omously coded, with the respondent indicating whether or not they observed (or
experienced) biased behavior. Table 4 summarizes the cell means, standard devi-
ations, and cell sizes for each of the ANOVAs discussed below.
Within the male lawyers' and judges' surveys, six parallel items examined
biased behavior (see Table 5 for these items). For example, male lawyers were
asked "Did any judge use informal forms of address with female counsel, includ-
ing terms of endearment or first name, while addressing you or other male counsel
as 'Mr.' or 'Counsel'?" Judges were similarly asked if male lawyers exhibited this
behavior. To indicate an observation of bias, we created a dichotomous variable
that distinguished between those who reported at least one biased behavior and
G E N D E R BIAS 475

Table 4. Cell Means, Standard Deviations, and Cell Sizes for Gender Bias Dimensions
According to Experience with Bias or Observation of Bias

Observed
Gender bias dimension bias Mean SD Na

Male lawyers
Presence of bias Yes 2.92 .82 91
No 3.52 .77 394
Instrumental bias Yes 2.83 .87 90
No 2.98 .75 388
Optimism Yes 2.15 .77 89
No 2.22 .84 391

Judges
Observed
Gender bias dimension bias Mean SD Na

Presence of bias Yes 3.08 .73 101

No 3.51 .74 239
Instrumental bias Yes 3.14 .72 101
No 3.25 .78 239
Optimism Yes 2.02 .81 101
No 1.98 .81 236

Female lawyers
Experienced
Gender bias dimension bias Mean SD N"

Presence of bias Yes 2.17 .54 107

No 2.54 .74 37
Instrumental bias Yes 3.44 .74 107
No 3.07 .66 37
Optimism Yes 2.70 .89 106
No 2.33 .66 37
a N ' s vary slightly because of missing data. Scores range from 1 to 5; 1 = agree strongly; 5 = disagree
strongly.

those who reported none. Overall, 14.5% of the male attorneys and 29% of the
judges indicated that they had observed at least one biased behavior within the last
12 months.
One-way ANOVAs were conducted to examine the relationship between the
observation of gender bias (observed/not observed) and the three dimensions of
gender bias. For male lawyers, the observation of gender bias was significantly
associated with the belief that gender bias existed (Presence of Bias), F(1,465) =
62.76, p ~< .01. Male attorneys who observed biased behavior in the courtroom (M
= 2.92) were more likely to believe that gender bias exists within that setting than
males who did not report such observations (M = 3.52). However, the observa-
tion of bias was not associated with male lawyers' belief that bias is simply a tactic
(the Instrumental Bias factor). Observation of bias was also not associated with
their belief that gender bias is improving in the courtrooms (Optimism factor).
Thus it appears that observations of gender-biased behavior do not similarly in-
fluence all gender bias attitudes.
476 RIGER ET AL.

Table 5. I t e m s Measuring Observation o f G e n d e r Bias

Male lawyers
In any case handled by you in the last 12 months, did an Illinois judge make remarks or exhibit
behavior directed at female counsel that was disrespectful, dismissive, patronizing, "or
derogatory?
Did any judge use informal forms of address with female counsel, including terms of endearment
or first name, while addressing you or other male counsel as "Mr' or "Counsel'?
Did any judge make inappropriate remarks about, or otherwise draw attention to, female counsel's
dress or physical appearance?
Did any judge appear generally more interested in and attentive to statements and arguments
made by you (or other male counsel) than to those made by female counsel--even though such
differential treatment was not justified by the circumstances?
Did any judge make remarks, directed at female counsel, about the proper social role of women
or about women's strengths or weaknesses?
Did any judge engage in collegial exchange with you or other male counsel, while ignoring female
counsel's presence or otherwise excluding her from professional camaraderie?
Judges
In any case heard by you in the last 12 months, did male counsel make remarks or exhibit
behavior directed at female counsel that was disrespectful, dismissive, patronizing, or
derogatory ?
Have male counsel engaged in any of the following behavior in cases heard by you in the last 12
months?
Male counsel used informal forms of address with female counsel, including terms of endearment
or first name, in which a male attorney would have been addressed as 'Mr" or 'Counsel'.
Male counsel made inappropriate remarks about, or otherwise drew attention to. female counsel's
dress or physical appearance.
Male counsel appeared generally less interested in and attentive to statements and arguments
made by female counsel than would have been likely had the latter been a male attorney.
Male counsel made remarks, directed at female counsel, about the proper social role of women or
about women's strengths or weaknesses.
Male counsel attempted to engage you in collegial exchange, while ignoring female counsel's
presence or otherwise excluding her from professional camaraderie.

A similar pattern of results was found within the judges' sample. Judges'
observations of gender bias were significantly associated with their belief that bias
exists in the courtroom (the Presence of Bias), F(I, 338) = 24.93, p <~ .01. Judges
who reported male lawyers engaging in gender-biased behaviors (M = 3.08) were
more likely to believe that gender bias exists within the courtroom than judges
who did not (M = 3.51). However, the observation of bias was not associated with
their belief that bias is simply a tactic (the Instrumental Bias factor) or that gender
bias is improving in the courtrooms (Optimism factor).
Seven items in the survey examined female lawyers' personal experiences
with gender bias in the courtroom (see Table 6). These items reflected the same
gender bias behaviors targeted in the male lawyers' and judges' surveys. For
example, female lawyers were asked: "Did any judge use informal forms of ad-
dress with you, including terms of endearment or first name, while addressing
male counsel as "Mr.' or 'Counsel'?" To indicate personal experience with bias,
we created a dichotomous variable that distinguished between those who reported
at least one bias incident and those who reported none. Overall, 74% of the female
attorneys indicated some experience with gender bias within the last 12 months.
GENDER BIAS 477

Table 6. Items Measuring Experience with Bias

Female attorneys
In any case handled by you in the last 12 months, did an lllinois judge make remarks or exhibit
behavior directed at you that was disrespectful, dismissive, patronizing, or derogatory?
Did any judge use informal forms of address with you, including terms of endearment or first
name, while addressing you or other male counsel as 'Mr.' or "Counsel'?
Did any judge make inappropriate remarks about, or otherwise draw attention to, your dress or
physical appearance?
Did any judge appear generally more interested in and attentive to statements and arguments
made by male counsel than to those made by y o u - - e v e n though such differential treatment was
not justified by the circumstances?
Did any judge make remarks, directed at you, about the proper social role of women or about
women's strengths or weaknesses?
Did any judge engage in collegial exchange with male counsel, while ignoring your presence or
otherwise excluding you from professional camaraderie?
In any case you handled in the courts in the last 12 months, did male counsel make remarks or
exhibit behavior directed at you that was disrespectful, dismissive, patronizing, or derogatory?

One-way ANOVAs were conducted to examine the relationship between per-

sonal experiences with gender bias (experience/no experience) and attitudes about
gender bias. Female attorneys' personal experiences with gender bias were sig-
nificantly related to all three attitudes about gender bias. Women lawyers who
experienced bias (M = 2.17) were more likely to believe that gender bias existed
(Presence of Bias Factor) than those who did not (M = 2.54), F(I, 142) = 10.67,
p ~< .01. Similarly, female attorneys who had encountered bias (M = 2.70) were
less likely to believe that the courtrooms were improving (Optimism Factor) than
women lawyers with no biased experiences (M = 2.33), F(I, 141) = 5.43, p ~< .05.
Finally, female lawyers who had encountered gender bias (M = 3.44) were less
likely to believe that bias was simply a tactic employed to win a case than women
attorneys without such experiences (M = 3.07), F(1,145) = 15.05, p ~< .01. Thus,
female lawyers' personal experiences with gender bias appear to be more directly
linked to attitudes about gender bias than the experiences of male lawyers or
judges.

DISCUSSION AND CONCLUSIONS

To understand (and eliminate) bias, a theoretical framework is needed that

permits a complex picture of what constitutes biased behavior and the psycho-
logical, demographic, and organizational correlates of such behavior (Terpstra &
Baker, 1987). Identifying the multiple facets of discrimination is a first step toward
such a framework. Analyses presented here indicate that biased behavior toward
female attorneys in the courtroom exists on at least three dimensions: Presence of
Bias, Instrumental Bias, and Optimism. It seems likely that these three dimen-
sions of biased behavior would be found as well in other professions, such as
medicine or science. However, the topics covered in the survey analyzed here
478 RIGER ET AL.

were not exhaustive; other dimensions may exist that go beyond the scope of
these data. For example, informal social networks of judges and/or attorneys may
exclude women and minorities; these networks may affect the disposition of court
cases or appointments to the judiciary. Future research on discrimination might
include items designed to assess other aspects of court functioning in addition to
those included in the survey analyzed here. Furthermore, each of the dimensions
of bias may stem from different sources and suggest different remedies for the
problem of discrimination.
The first dimension identified here, Presence of Bias, refers to the belief in
the presence of discrimination. Women in this study perceived more bias than
men, and lawyers perceived more than judges. Identifying the extent of discrim-
ination may be the first step in correcting the problem of gender bias, and a scale
based on these items may be a useful diagnostic tool for assessing belief in the
pervasiveness of bias. Interpretation of scale scores without other data may be
problematic, however, since disagreement with these items may suggest either
that no discrimination exists or that the respondents' awareness of discrimination
is low. Behavioral data are needed to assess the relationship of perceptions to
actual incidents of bias.
The second dimension identified in this study, Instrumental Bias, is perhaps
the most problematic one for those interested in remedying discrimination be-
cause it suggests that biased behavior is rewarded, making change difficult. Prag-
matic, rather than prejudicial attitudes, may underlie discrimination. Almost 20
years ago, Jill Wine-Banks (then Wine-Volner) described the "sexual trial tactics"
used against her during the Watergate and other trials, such as an opposing at-
torney constantly referring to her as "the young lady" (cited in Schafran, 1983).
On the other hand, some respondents to this survey reported their belief that
women use their gender to gain advantage, also.
Instrumental bias parallels a previously identified phenomenon which Kiesler
(1975) termed "actuarial bias." The low numbers of women in high-status posi-
tions in organizations may, for example, lead ambitious subordinates to shun
female bosses simply because they are unlikely to be able to help one to rise in the
organization. The absence of prejudicial intent, however, may not make the be-
havior less discriminatory. The relationship of actuarial prejudice or instrumental
bias to increasing numbers of women at work warrants exploration. Change will
come about only when these actions are no longer permitted or are no longer
effective. Judges sensitive to such tactics can prohibit such behavior in the court-
room (Schafran, 1983). It is instructive that, in this study, male judges were the
least likely group to believe that gender bias is a trial tactic.
The third dimension identified here, Optimism, reflects a belief that gender
bias will correct itself given time. Female judges in this study were more optimis-
tic than female lawyers, while males' attitudes did not vary by role. Some of the
behaviors toward female attorneys that reflect gender stereotypes are likely to
diminish as judges and lawyers become more familiar with women in the legal
profession. The increase in numbers of female attorneys, however, may be cause
for backlash rather than acceptance. Kanter (1977) claimed that those in a token
status (i.e., people from that group represent 15% or less of the population of the
GENDER BIAS 479

workplace) are more likely to receive discriminatory treatment. In contrast, oth-

ers examining the position of women in academia have found that the smaller the
proportion of women in a scientific field, the more equitably they were distributed
across academic ranks (Toren & Kraus, 1987). This suggests the need for an
examination of the relationship between the frequency of biased behaviors and
sex ratios of attorneys in the courtroom.
The second purpose of this study was to explore correlates of belief in gender
bias. As with most previous studies, men and women differ in their perceptions
regarding gender bias (although there is diversity of opinion within each group),
and one's role as a lawyer or judge also appears to be related to perceptions.
These differences appear to be more than mere cohort effects. Overall, the per-
centage of variance explained by these variables was small. Although role had
some importance, particularly with respect to belief in instrumental Bias, gender
offered greater predictive power. The small number of female judges in this study
suggests caution in interpreting the findings, however. What seems likely is that a
given courtroom incident is subject to different interpretations depending on the
gender of the perceiver. For example, behavior by a judge may be interpreted by
male counsel as displaying favoritism toward female lawyers, while female law-
yers may interpret that Same behavior as gender-motivated condescension.
The importance of gender as a predictor of attitudes about bias warrants
further examination. These data suggest that direct experience has an impact on
attitudes, especially for women. Female lawyers who had experienced bias not
only were more likely to believe that bias exists, they also were less optimistic
about reductions in discrimination in the courts and were less likely to see bias
merely as a trial tactic. These differences in attitudes between women who had
experienced bias and those who had not counter the presumption that there is a
"woman's way'" of viewing discrimination. Differences among women in atti-
tudes may be as important as those between women and men and ought to be
taken into consideration when contemplating such judicial reforms as a ~'reason-
able woman" standard.
The term ~'microinequalities" refers to the numerous subtle forms of behav-
ior which, in the aggregate, foster a working climate that is inimical to women.
Microinequalities in courtroom dynamics can range from being called " d e a r " or
"sweetheart" by a judge to disparaging comments about one's appearance from
opposing counsel to remarks about one's weight or appearance from a court
employee. Although each of these incidents may appear trivial in isolation, to-
gether they present a pattern of discrimination that undermines women's author-
ity in the courtroom. This discrimination is not necessarily the result of prejudicial
attitudes; in part, these behaviors by attorneys may be a function of their will-
ingness to use whatever tactics possible to win their case. Several state Task
Forces on Gender Bias in the Courts recommended that judges' training heighten
their awareness of gender bias and that codes of judicial conduct mandate that
judges refrain from biased behavior and not permit attorneys or court personnel to
engage in such conduct (Defeis et al., n.d.). Ending bias in courtroom dynamics
may come more quickly from strict enforcement of such codes rather than from
attempts to educate and change prejudicial attitudes.
480 RIGER ET AL.

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