Dispute Resolution by Old White Men: Gender Prejudice Sinks Arbitration Award

O.K., the subject line was meant to shock you and to draw criticism for what I will admit is my greatest unresolved prejudicial default — that white men over 65 who didn’t participate in the  American cultural revolution of the late nineteen sixties and early 1970’s did not and will never “get it.”

The Court opinion that triggered the headline and the recollections below is here.  The “executive summary” is as follows:  One of three arbitrators who cast the deciding vote on a plastic surgery malpractice case

• failed to disclose that he’d been censured while on the bench for making “sexually suggestive remarks to and asked sexually explicit questions of female staff members; referred to a staff member using crude and demeaning names and descriptions and an ethnic slur; referred to a fellow jurist’s physical attributes in a demeaning manner; and mailed a sexually suggestive postcard to a staff member addressed to her at the courthouse.”
• The majority arbitrators deciding the malpractice case stated that the female claimant was not credible because the “severity of the symptoms to which she testified went beyond what she described to her doctors, adding, “This claimant has had five prior facial surgeries.”
• Similarly, in summarizing the claimant’s expert’s testimony, these arbitrators noted, “One thing probably everyone can agree upon, after five facial surgeries, [claimant] could have done without a sixth one.”

Back to My Own History as Descriptive of —  But No Excuse for — My Own Biases

We all have biases that we hide from others and some that we successfully hide from ourselves.

We live, I’m told, in a 200 year present.  That means that my early life affects your life today.  After all, I’m an old white woman, about whom you may well have biases.  If I sit on your arbitration panel, you’re going to want to understand those biases.  That’s why I’m giving you a bullet-pointed history of what the world was like when I was forming my essential character at 17 years of age in 1969.

• the “want-ads” in the classified section of every major newspaper in American were categorized by gender — “help wanted – women” and “help wanted – men”
• in my senior year in high school, my entire class took “preference aptitude” tests to give us an idea of what our future careers might look like — the girls were given “pink” tests and the boys “blue” tests — had I shown an aptitude for, say, math (and no I didn’t) I would have been steered into nursing; my male friends into “medicine” as physicians.
• women were subject of explicit ridicule in magazine and newspaper cartoons — we were airheads, bimbos, bad drivers, harpies or — the “new” stereotype — communist-longhair-folk-singing-America-hating-hippie-riot-inciting-“girls” who were alternately “men hating” or — an old phrase — “of easy virtue.”
• it wasn’t until the 1970’s, when I was in college and already planning a career teaching English (after all, nursing required math-skills) that the idea of a career in the law for women as anything other than a secretary began to seem possible.
  • at Columbia Law School, the 1970 graduating class was only 8% female
  • by the year I graduated from law school in 1980, Columbia’s female population had grown to a whopping 32%
  • although the enrollment of women in my law school class at U.C. Davis was nearly 50% in 1980, when I told my beloved mother in 1976 that I was going to apply to law school she said “why do that, honey?  Be a legal secretary, then you can marry a lawyer.”
  • when my husband attended Yale Law School (’67-’70) he had seven women classmates
  • until the late sixties and early seventies, a woman desirous of an Ivy League university education had no choice but to go to a “woman’s” school — Barnard, Radcliff and the like.
• when I was in high school
  • abortion was illegal
  • married women were not entitled to their own credit cards
  • gender discrimination was both de jure and de facto — it was o.k. to refuse to hire, sell to, rent to, deny membership to, etc. — women
• when I  was practicing law (these all from the early ’80s)
  • a partner for whom I worked told me that women weren’t permitted at the local “men’s only” club because “we don’t want our wives there.”
  • a Judge required me to identify myself as Mrs. or Miss and when I said I didn’t think it necessary to identify myself by my marital status, asked “what are you some kind of [women’s] libber?” (yes, I lost the motion)
  • I was advised by the few women attorneys senior to me not to get pregnant until after I made partner
  • secretaries were allowed to refuse to be assigned to a woman attorney
  • the first woman to make partner at my law firm was quite openly referred to as “the first muff partner” by her colleagues
  • on the other hand, when a client said (of my assignment to its case) that the company did not want to be represented by a “girl,” my partner told the client “then you don’t want this firm representing you because she’s the best associate I have”

I promise to work on my prejudices.  And I advise anyone who is about to appear before any dispute resolver — be that person male, female, white, black, young or old, GOOGLE THEM FIRST!

                       

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >