Traditional Gender Roles and Backlash Against Female Attorneys Expressing Anger in Court

• Published date: 01 December 2019
• DOI: http://doi.org/10.1111/jels.12238
• Date: 01 December 2019
• Author: Hannah J. Phalen,Jessica M. Salerno

Journal of Empirical Legal Studies

Volume 16, Issue 4, 909–932, December 2019

Traditional Gender Roles and Backlash

Against Female Attorneys Expressing

Anger in Court

Jessica M. Salerno*and Hannah J. Phalen

Trial advocacy education often stresses the importance of attorneys expressing arguments

with emotion to signal conviction. Yet, female attorneys must approach this advice with

caution given potential backlash for expressing emotions traditionally considered masculine,

like anger. Two experiments (Study 1, N= 220; Study 2, N= 273) demonstrated that people

most likely to endorse traditional gender roles exhibited bias against female attorneys

expressing anger in court. Participants were recruited nationally and randomly assigned to

view an attorney delivering a closing statement in court who either ( 1) was a man or a woman,

and (2) used a neutral or angry tone. They reported how hirable and effective they perceived

the attorneys to be and completed measures of several individual difference factors that are

established predictors of endorsement of traditional gender roles: ambivalent sexism, political

conservatism, and age. Participants who were more likely to hold traditional gender values

(i.e., more benevolently sexist, more politically conservative, and older) were more likely to

favor attorneys who conformed to gender norms (i.e., male attorneys who expressed anger re l-

ativetonoanger)andlesslikelytofavorattorneys who violated gender norms (i.e., female

attorneys who expressed anger relative to no anger). Thus, female attorneys are faced with the

challenge of walking the line between exhibiting traditionally masculine behaviors that are val-

ued by the legal system—but not so much so that they suffer backlash for violating gender

norms.

I. Traditional Gender Roles and Backlash Against

Female Attorneys Expressing Anger in Court

The law has traditionally been a male-dominated profession. Despite women making up

half of matriculating law students, women make up only 36 percent of practicing attorneys

and only 18 percent of equity partners (APA 2017). The male-dominated nature ofthe pro-

fession has given rise to a system that favors masculine traits, such as individualism, auton-

omy, and competition (McGinley 2012). Because the system champions these masculine

*Address correspondence to Dr. Jessica M. Salerno, Associate Professor, Arizona State University, 4701

W. Thunderbird Dr. (MC 3051), Glendale, AZ, 85012; email: jessica.salerno@asu.edu. Phalen is a Doctoral Stu-

dent, Arizona State University.

909

traits, legal scholars have theorized that women’s success in the field might be stunted by

the contradictory expectations for how a good attorney should behave and how women

should behave. Female attorneys might be penalized both for failing to exhibit masculine

traits when acting feminine but also for violating gender stereotypes when exhibiting mas-

culine traits. This “double bind” might put women in thelegal profession at a disadvantage

while attempting to advance their careers, as there is no way for women to meet both sets

of contradictory expectations.

Despite the large body of theoretical legal literature about the disadvantages that

female attorneys might face when developing their courtroom style, few scholars have

empirically tested theories about backlash against female attorneys who violate gender

roles. There is, however, empirical evidence that female attorneys face gender bias in

their profession in general. For example, one study demonstrated that female attorneys

received more positive performance reviews than men—yet women were less than half as

likely to be mentioned as potential partner material than were men (Rhode 2017). Media

coverage reveals more gendered forms of criticism and comments about appearance and

family life when referring to female judicial nominees relative to their male counterparts

(Wooley & Darling 2017). These studies, however, are largely correlational. Correlational

studies provide important real-world data but cannot establish a causal role of gender in

reactions to attorneys. The door is therefore left open a crack for people to argue that

there are some naturally occurring differences in male and female attorneys’ abilities or

performance that drive the gender disparities observed in the legal profession. A rare

experimental exception tested causality by manipulating whether people were randomly

assigned to see a male or female attorney who either did or did not display aggression in

court. The study demonstrated that aggressive male attorneys were the most successful,

compared to passive male attorneys and both aggressive and nonaggressive female

attorneys—demonstrating an advantage for aggressive attorneys, but not necessarily a

backlash for aggressive female attorneys (Hahn & Clayton 1996).

We extended this limited experimental literature by testing whether people would

react differently to attorneys who deliver their arguments with anger (Salerno et al.

2018), which is stereotypically considered to be an emotion expected from men, but not

from women (e.g., Fabes & Martin, 1991; Salerno et al. 2019). Across three experiments,

we found support for the idea that male attorneys were rewarded for “acting male,” while

female attorneys were penalized for the same behavior. More specifically, when male

attorneys delivered their closing statements in an angry tone (compared to a neutral

tone), they were rewarded in that participants viewed them more positively and, in turn,

expressed greater willingness to hire them. In contrast, when female attorneys delivered

the same closing statement with the same level of anger (compared to no anger), they

were penalized in that participants viewed them more negatively and, in turn, expressed

less willingness to hire them. Although this article established that attorney gender plays

a causal role in how people react to a traditionally masculine behavior (i.e., expressing

anger), it did not provide an explanation for why people react positively to angry male

attorneys and negatively to angry female attorneys.

The goal of the current article is to revisit these data with a new analysis of individ-

ual difference factors that might predict who among our samples were more or less likely

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