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Gender Bias in the Legal Profession as Highlighted by “The People v. O.J. Simpson: American Crime Story”

The critically acclaimed 10-part TV series by FX, The People v. O.J. Simpson: American Crime Story, revisits the legal soap opera which, according to a certain narrative, concluded in the miscarriage of justice. For many of us, our most vivid recollections of the “trial of the century” included issues of race, classism, celebrity, and the emergence of the 24-hour news system. Yet, flagrant gender discrimination endured by female lead prosecutor Marcia Clark was at the forefront of this landmark case. The relentless scrutiny placed on Ms. Clark by the public and her male peers in the courtroom, including Judge Lance Ito, Johnnie Cochran, and Robert Shapiro, has finally been brought to light in the series’ sixth episode, “Marcia, Marcia, Marcia.”

The People v. OJ Simpson took place in the middle of the 1990s, a time where the word “feminist” was considered an insult. “Because the sexism—The S-word. Nobody wanted to talk about that.” said Clark while praising Ryan Murphy, the director of the series, for being brave enough for examining the gender dynamics of the infamous trial. The public’s criticisms of Ms. Clark mirrored the societal tendencies women are expected to possess – to be delicate and less assertive. Ms. Clark explained “People would try to give me advice like, ‘You shouldn’t come across tough. Wear pastels. Talk softer.’” While some level of gamesmanship and combative behavior was expected from opposing counsel, Ms. Clark recalls being treated like a second class citizen by Judge Ito, even being called out for wearing a short skirt. “I remember him interrupting me, upbraiding me in front of the jury during opening statement.” She was “appalled on a daily basis on [sic] his behavior. On every level.”

The majority of conversations regarding Ms. Clark and the Simpson trial were not about her skills as the lead prosecutor in a high profile case. Rather, people ridiculed her tight black permed hair, her “dowdy” suits, and the dark-circles under her eyes. The discrimination she faced in the courtroom was dismissed by the media as a joke about her bad haircut and lack of makeup. The tabloids focused on the custody battles waged by her ex-husband over their two young sons, her alleged failure to be a good mother, her prior marriages, and her inability to work late in order to get home to her children at a reasonable time. The culmination of the public’s internalized misogyny came with the publication of topless photos of Ms. Clark, sold to the National Enquirer five months into trial by her ex-husband’s mother. Unlike Ms. Clark, her male peers never had to worry about having nude photographs published, being mocked for having dark circles under their eyes, or enduring criticism for being a working parent.

A recent survey conducted by the Harvard Law School’s Center on the Legal Profession regarding gender bias in law firms, entitled The Women and Men of Harvard Law School: Preliminary Results from the HLS Career Study, concluded while women at law firms work more hours than men, they are significantly less likely to be in leadership positions, such as equity partners. The study found female partners are twice as likely as male partners to have no children. Compared to their male peers, women report significantly more work place consequences for having children, such as loss of seniority. Women partners are also reported to be less likely to be married than male partners. The study also found women are more likely to report feeling discriminated against in the workplace as a result of their gender.

While we would like to think we have come a long way from the Marcia Clark days where female attorneys were ridiculed for having responsibilities at home as mothers or being called a “b***h” for being as assertive in the courtroom, the abovementioned survey indicates otherwise. The issues women face as working professionals must be discussed as breathlessly as their appearances. With the “Marcia, Marcia, Marcia” episode, director Ryan Murphy has offered Ms. Clark redemption in the court of public opinion as a platform to discuss the issues women still face in the workplace. We are now able to reflect on our egregious behavior against Ms. Clark and hopefully make strides to ensure it never happens again.

Tyson & Mendes committed to the advancement of women at the inception of the firm in 2002. We are currently led by 8 partners across our offices, 4 of which are female. Females comprise 51% of our attorney staff.

Recent growth has inspired us to champion gender equality and the advancement of women throughout the legal and insurance industry through our Women’s Initiative. To learn more about Tyson & Mendes Women’s Initiative, click here.

ABOUT THE AUTHOR: Pari H. Granum is an associate at Tyson & Mendes. Ms. Granum specializes in personal injury and premises liability litigation. Contact Pari at 858.263.4067 or pgranum@tysonmendes.com.

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