The lose-lose fashion dilemma for women litigators
“When you are representing a client in court, don’t wear bright red lipstick. Don’t wear colorful clothes. Don’t try to be fashionable. Don’t wear too much makeup. Don’t wear colorful nail polish–actually, don’t even wear nail polish. Judges don’t like it.”
This was the advice Peggy Li received from a female attorney during her first year of law school. We’ve seen variations on this theme before in exhortations of proper attire for women in court. It remains a troubling question for many female attorneys who do not want something like their appearance to harm their client in court.
Is it fair? No. Is it a real concern? Unfortunately, yes. You may think these questions are old-school but they are as real today as they were ten years ago.
Should I wear a suit with a skirt or are pants okay?
Can I wear a dress with a jacket or is that too casual?
Should I dress colorfully or should I be plain and blend in?
What about fingernail polish?
Should I wear my hair up or is it okay to leave it down?
Can I wear my bracelet with religious symbolism since I wear it daily anyway?
This article by Peggy Li (available for download on the SSRN network) talks frankly about how the physical attractiveness and femininity of women attorneys relates to how your competence, skills and abilities are assessed by others. She covers both the “beauty is good” and the “beauty is beastly” stereotypes (the latter is believed to be applied to women in male-dominated professions such as the law).
Of particular interest is the section on female attorneys who are “perceived as sexy”. “Sexy” is in the eye of the beholder, and can be particularly difficult for the female attorney choosing attire for the courtroom. Li poses the dilemma this way: Does a tasteful skirt-suit convey conservatism and deference to the court or does the exposure of skin mean it is sexual? It’s a provocative question and while Li poses it, she does not answer it.
It is reminiscent of a mock trial we moderated where a female attorney was presenting against “good old boy” attorneys who joked with (and bonded with) mock jurors. When the highly skilled female attorney cracked a joke and then winked at jurors (as the men had done), she was rewarded with comments sexualizing her behavior from the mock jurors.
“She needs to stop flirting with us (winking and batting her eyes) and focus on improving her presentation.”
“I don’t want to hear what roads she drives on locally. She just needs to present the facts.”
“Her skirt was too short.”
It was simply a different unit of measure the jurors expected. The male attorneys could guffaw and grin and wink and it was all fine. But, not the female attorney. No matter how good she was. The jurors didn’t want her to be flirtatious, attractive, or disclosing. They didn’t want her to be sexy. In truth, she wasn’t being sexy and she wasn’t trying to be flirtatious. But that’s how she was seen.
Li describes a number of cases within law firms where women attorneys have been targets for discrimination. Li recommends training women in male-dominated professions such as the legal profession in how implicit bias works so they can see situations or variables that might elicit those biases against them. She does casually mention she has developed her own style that feels comfortable for her in court but she does not discuss the factors she considered as she developed that style. She says women attorneys should be both smart and likable and recommends Sheryl Sandberg’s Lean In book. These ideas are theoretical and “interesting” but they lack substance and specific responses to the question of how to dress in court so you are seen as credible and competent. Nonetheless, Li’s article is a good overview of the research on “why” this happens to women. Now all we need is someone to tell us what to do in response to the why.
It’s a question we get routinely from our women clients. Those who read our blog (especially the category on how hard it is to be a woman) know this is not a simple question. Nor does it have a blanket answer. This complex dynamic (far more complicated than it is for men) involves physical appearance, personal authority, and style. Our recommendations vary depending on the person and the context. Sometimes it is about speech patterns. Sometimes it’s about how to tell a story. Sometimes it’s about something as superficial as wearing eyeglasses. More often though, it’s about building confidence and preparedness for battle without apology and without rancor.
Li, Peggy (2013). Physical attractiveness and femininity: Helpful or hurtful for female attorneys? Social Sciences Research Network (SSRN).