Advocacy Within the Halls of the U.S. Department of Justice

For the past four decades, the legal profession has undergone a gender representation transformation.^[2]  A field once dominated by men^[3] now consistently sees law school classes filled to near parity in gender representation.^[4]  With more women than ever entering the legal field, a greater focus has been generated on the roles and opportunities available to women once they begin their post-graduate professional lives.^[5]  Legal departments in every corner of the legal community from the judiciary,^[6] the federal workforce,^[7] and academia,^[8] to law firms^[9] and the corporate in-house community,^[10] have responded and many are adopting policies that promote gender equality often in the context of supporting concepts of diversity, equity, and inclusion among their ranks of attorneys.  The results have been profound with marked increases in gender equality evident throughout the profession, and in 2021, thirty-seven percent of active attorneys were women, up five percent from 2011.^[11]

Yet, when we dig a little deeper, the gains are not as clear cut, and these efforts have, at times, met with mixed results.  For example, in the law firm context, despite a significant and sustained focus on diversifying the representation of female attorneys in law firms ranks, the profession as a whole remains one of the least diverse, especially with regard to the gender dimension.^[12]  The American Bar Association has been measuring gender diversity in the attorney population and its most recent study reflects that gender diversity in the profession is rising but at a marginal pace.^[13]  We see similar instances of marginalized growth in academia, as well, where the gender ratio of law professors tilts in favor of males significantly.^[14]

So, how are female lawyers addressing this at a grassroots level?  At the federal level, they’re organizing and advocating.^[15]  The largest single entity employing lawyers in the United States is the federal government. The Bureau of Labor Statistics reports indicate that in 2019, lawyers held about 813,900 jobs nationwide, and of those a full five percent worked for the federal government.^[16]  Likely the single greatest number work for the U.S. Department of Justice, which hires more than 750 experienced attorneys nationwide each year.^[17]

In terms of advancing gender equity, federal attorneys working at the DOJ have organized and advocated for themselves and their colleagues.  In 2009, the National Association of Immigration Judges (NAIJ), DOJ federal attorneys who are appointed Immigration Judges by the U.S. Attorney General, formalized support for diversity by instituting a Women’s Committee in concert with the NAIJ’s parent union, the International Federation of Professional and Technical Engineers (IFPTE).^[18]  Since that time, the group has naturally expanded its purview to include first “gender equality” in 2015, and then “gender and equality” in 2017, in line with a greater understanding and identifying of need.^[19]

In recognition of the broad nature of the group’s current mandate, the NAIJ formally changed the group’s title to more closely match its expanded and redefined focus.^[20] The Committee’s title has been revised to the NAIJ Diversity, Equity, and Inclusion Committee which focuses on diversity, equity, and inclusion efforts generally, including identifying underrepresented groups of union members and removing or reducing unconscious biases with respect to such underrepresented groups.^[21]  The group seeks to facilitate the ongoing and continuing effort to foster a culture and atmosphere of mutual respect and understanding for members through the creation of subcommittees, as follows:

• Subcommittee on Gender Diversity, Equity, and Inclusion;
• Subcommittee on Race, Ethnicity, and National Origin Diversity, Equity, and Inclusion; and
• Subcommittee on Sexual Orientation and Gender Identity Diversity, Equity, and Inclusion.^[22]

By supporting and coordinating diversity, equity, and inclusion efforts, it serves as a resource for identifying best practices and providing training opportunities for the NAIJ members.^[23]

In May 2021, the NAIJ submitted an official response to the United Nations Special Rapporteur on the Independence of Judges and Lawyers, United Nations Office of the High Commissioner for Human Rights, Questionnaire on Gender Equality in the Judiciary.^[24]  That document concluded that while the Immigration Court system is approaching gender equality for Immigation Judges overall, there is still a deficit in female leadership at the highest levels.^[25]

In addition, the NAIJ works closely with other entities to pursue these objectives. A key partner is the DOJ Gender Equality Network (DOJ GEN).  Formed in 2017, this group which is comprised of DOJ attorneys is an advocacy and resource organization and its primary objective is to promote the equal and supportive treatment of DOJ employees and contractors regardless of gender.^[26]  Membership in the organization is open to everyone in the DOJ components, in all geographic regions.  The focus of the group is to work with the DOJ leadership in developing and implementing effective policies and practices to enhance equality of opportunity regardless of gender, to foster an inclusive workplace, and to prevent gender-based discrimination in all Departmental activities.  Furthermore, DOJ GEN works to ensure an inclusive, safe and healthy work environment by preventing sexual harassment and related conduct, and by ensuring fair application of EEO and personnel laws, policies, and procedures.^[27]

In the abbreviated period of time that the group has been in existence, it has achieved significant milestones including providing input on a DOJ-wide workplace flexibility proposal, advocating for policies designed to promote pay parity, advancing public positions on how to address sexual harassment concerns, and calling attention to concerns about advancement opportunities for women.^[28]  The organization has promoted diversity in leadership and management positions in the Department.^[29]  It has argued for measures that support equality of opportunity in career and leadership development, including workplace flexibility, and providing education about and overcoming barriers to inclusion and opportunity.^[30]

In addition, DOJ GEN encourages inclusiveness through encouraging considerations of intersectionality within DOJ GEN activities, information-sharing, networking, and cross-component collaboration on issues of importance to DOJ GEN members.^[31]  The group’s programs have been wide-ranging dating back to 2017 when it joined the DOJ Justice Management Division in co-hosting a panel for a group of  40 female college students involved in a community program called, Preparing Women to Lead (PLEN) organization.^[32]

Yet, in spite of advancements, within the federal workforce, stubborn issues remain especially in the areas of female representation in leadership positions, workplace flexibility, access to pay equity, and adequate protection from sexual harassment.^[33]  The Department is identifying and in some cases tackling these concerns.  For example, in May 2017, a DOJ Office of Inspector General Report found “potential systemic issues” involving how individual components within the Department  responded to sexual harassment claims by employees.^[34]  On April 3, 2018, DOJ GEN hosted an in-depth program discussion with Inspector General Michael Horowitz about the details of the report.   DOJ components in the Antitrust Division, the Civil Rights Division, the Bureau of Prisons, the Tax Division, and the Energy and Natural Resources Division co-hosted the program.^[35]  In December 2017, DOJ GEN sent a letter to the DOJ leadership calling for reforms to address the OIG-identified systemic concerns.^[36]

In an effort to address leadership disparities, in May 2019, DOJ GEN sent a letter to then-Attorney General William Barr concerning the lack of women in leadership positions at the Department of Justice.^[37]  Similarly, when then-President Trump issued Executive Order 13950 in October 2020, censoring diversity training in federal agencies that were deemed to involve “divisive concepts” this resulted in the cancelling of a long-planned, high-profile DOJ GEN gender equality and diversity training event.^[38]  As soon as Executive Order 13950 was revoked,^[39] and, in honor of the most recent International Women’s Day, DOJ GEN hosted the previously-cancelled panel discussion featuring former-U.S. Attorney Jessie Liu and Acting Alcohol, Tobacco, and Firearms Director Regina Lombardo, at which over 500 DOJ employees attended.^[40]

In 2019, DOJ GEN scored a significant win when it successfully lobbied for the passage of Federal Employee Paid Family Leave Act (FEPLA) affording paid parental leave for federal workers.^[41]  FEPLA provides federal workers access to up to 12 weeks of paid time off for the birth, adoption or placement of a new child.^[42]

These efforts by DOJ GEN have exerted pressure on Administration and Congressional leaders to become more effective at addressing gender imbalance and inequities.  The Biden Administration appears a willing partner in this effort.  It has prioritized diversity, equity, inclusion, and accessibility through the signing of Executive Order 14035 advancing these objectives in the Federal Government.^[43]  This government-wide initiative seeks to reinvigorate and prioritize opportunities for women, as well as a host of others that have historically faced discrimination.^[44]  The Office of Personnel Management will be leading the way by providing agencies with information and resources, and the Administration plans to offer a methodology for assessing the current state of diversity, equity, inclusion, and accessibility in the federal workforce.^[45] One stated goal is to develop a strategic plan and to provide a framework to address workplace harassment, and to do so creating more transparency and accountability.^[46]  Executive Order 14035 uses a data-driven approach to increasing transparency and accountability.  It establishes a reporting system for agencies to submit diversity, equity, inclusion and accessibility plans, and offers a mechanism for providing technical assistance and guidance.^[47]

Leadership at the DOJ in addressing NAIJ and DOJ GEN concerns appears promising.  In the first six months of this administration, Executive Orders have been issued which establish a tone of support for diversity, equity, inclusion, and accessibility — all NAIJ and DOJ GEN priorities.  With much work left to be done, DOJ leadership has an opportunity with the high bar that has been set by President Biden to tackle gender equity concerns.  With the outsized leadership role that the DOJ plays within the legal profession as a whole, it has the power to raise the bar far beyond the federal workforce, as well.

Endnotes

^[1] The author is President of the National Association of Immigration Judges and in that capacity  serves on the Board of the U.S. Department of Justice, Gender Equality Network.  The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review.   The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.

^[2] See, Virginia Drachman, Sisters in Law:  Women Lawyers in Modern American History (1998); Judith Baer, Our Lives Before the Law:  Constructing a Feminist Jurisprudence (1998).

^[3] U.S. Equal Employment Opportunity Commission, Diversity in Law Firms, https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/statistics/reports/diversitylaw/lawfirms.pdf.  That report reflects that women in the legal profession increased from 14.4 percent in 1975 to 40.3 percent in 2002.

^[4] U.S. Equal Employment Opportunity Commission, Diversity in Law Firms, https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/statistics/reports/diversitylaw/lawfirms.pdf. That report reflects that women receiving law degrees increased from 33 percent in 1982 to 48.3 in 2002.

^[5] National Association for Law Placement, Diversity Best Practices Guide, 2020 Edition,  https://www.nalp.org/uploads/2020_DiversityBestPracticesGuide.pdf. Berkeley Law Women in Business Law Initiative, Women in Business Law Initiative Roundtable Series, September 20, 2019, Addressing Development and Retention Gender Parity in U.S. Law Firms: Recommendations, https://www.law.berkeley.edu/wp-content/uploads/2019/10/GenderParity_Recommendations-for-Law-Firms.pdf.

^[6] Administrative Office of the Courts, Strategic Plan for the Federal Judiciary, 15-18, https://www.uscourts.gov/sites/default/files/federaljudiciary_strategicplan2020.pdf.

^[7] Office of Personnel Management, Executive Order (EO) 14035 – Diversity, Equity, Inclusion and Accessibility in the Federal Workforce, https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/diversity-equity-inclusion-accessibility-in-the-federal-workforce.pdf; Executive Order (EO) 14035. Diversity, Equity, Inclusion, and Accessibility (DEIA), https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/25/fact-sheet-president-biden-signs-executive-order-advancing-diversity-equity-inclusion-and-accessibility-in-the-federal-government/.

^[8] University of Pennsylvania Carey School of Law, Promoting gender equality and gender equity at the University of Pennsylvania Carey Law School, (March 30, 2021), https://www.law.upenn.edu/live/news/11082-promoting-gender-equality-and-gender-equity-at-the.

^[9] National Association for Law Placement, Diversity Best Practices Guide, 2020 Edition,  https://www.nalp.org/uploads/2020_DiversityBestPracticesGuide.pdf.

^[10] Vanessa Scott and E. Leigh Dance, Global In-House Legal Leaders Share What’s Working in Diversity, Equity and Inclusion, (June 3, 2021) https://www.law.com/corpcounsel/2021/06/03/global-in-house-legal-leaders-share-whats-working-in-diversity-equity-and-inclusion/?slreturn=20210624110514.

^[11] ABA, 2021 National Lawyer Population Survey by State, https://www.americanbar.org/content/dam/aba/administrative/market_research/2021-national-lawyer-population-survey.pdf.

^[12] Allison E. Laffey and Allison Ng, ABA, Diversity and Inclusion in the Law: Challenges and Initiatives (May 2, 2018) https://www.americanbar.org/groups/litigation/committees/jiop/articles/2018/diversity-and-inclusion-in-the-law-challenges-and-initiatives/.

^[13] Id.

^[14] McKinsey & Company, Women in Law Firms, https://www.mckinsey.com/featured-insights/gender-equality/women-in-law-firms#. In its 2017 survey, McKinsey conducted a “deep dive” on the state of women lawyers in U.S. law firms and discovered that despite gender parity in law school graduation rates, only 19 percent of equity partners were women, and women were 29 percent less likely to reach the first level of partnership than are men.  Women of color account for 16 percent of attorneys at the entry level but only 3 percent of equity partners and 4 percent of managing partners.

^[15] The National Association of Immigration Judges has had a Women’s Committee since 2010, and has recently expanded its mission to include supporting diversity, equity, and inclusion, beyond the gender dimension.  The author has served as this group’s chair for over a decade.  She also serves on the Board of the International Federation of Technical and Professional Engineers (IFPTE) Women’s Solidarity Network, https://www.ifpte.org/wsn.

^[16] Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Lawyers, https://www.bls.gov/ooh/legal/lawyers.htm.

^[17] DOJ, Office of Attorney Recruitment and Management, A Career Counselor’s Guide to Lateral Hiring at DOJ, https://www.justice.gov/oarm/images/lateralhiringguideforweb.pdf.

^[18] See NAIJ Records, on file with the author.

^[19] Id.

^[20] Id.

^[21] Id.

^[22] Id.

^[23] Id.

^[24] Id.

^[25] Id.

^[26] See DOJ GEN, Who we are, https://www.dojgen.org/whoweare.

^[27] Id.

^[28] See DOJ GEN, What we’ve done so far!, https://www.dojgen.org/what-we-have-done.

^[29] DOJ GEN, DOJ Gender Equality Network: Recommendations for Moving Toward Gender Equality at DOJ, https://static1.squarespace.com/static/5a7097c0d55b41a81fbefaec/t/6046ddb4211e7e4b9a06854c/1615257013316/DOJ+GEN–briefing+document+for+new+administration.pdf.

^[30] Id.

^[31] Id.

^[32] See DOJ GEN, What we’ve done so far!, https://www.dojgen.org/what-we-have-done.

^[33] DOJ GEN, Letter to the Incoming Administration, DOJ Gender Equality Network: Recommendations for Moving Toward Gender Equality at DOJ (January 13, 2021)  https://static1.squarespace.com/static/5a7097c0d55b41a81fbefaec/t/6046ddb4211e7e4b9a06854c/1615257013316/DOJ+GEN–briefing+document+for+new+administration.pdf.

^[34] DOJ OIG, Review of the Handling of Sexual Harassment and Misconduct Allegations by

the Department’s Civil Division, Evaluation and Inspections (E&I) Report 17-03 (May 2017).

^[35] See DOJ GEN, What we’ve done so far!, https://www.dojgen.org/what-we-have-done.

^[36] DOJ GEN, DOJ GEN Letter to Scott Schools, Associate Deputy Attorney General (December 22, 2017) https://static1.squarespace.com/static/5a7097c0d55b41a81fbefaec/t/5f88fa41018abc214c57ea67/1602812481778/Thank-you+SH+note+12.21.17.pdf.

^[37] DOJ GEN, DOJ GEN Letter to AG Barr (May 14, 2019) https://static1.squarespace.com/static/5a7097c0d55b41a81fbefaec/t/5db1f8e1471a0d65be026210/1571944673475/DOJ+GEN+Barr+letter.pdf.

^[38] DOJ GEN, DOJ GEN Hosts Panel Discussion — Addressing the Gender Leadership Gap (March 9, 2021) https://www.dojgen.org/what-we-have-done.

^[39] Executive Order 13985 of January 20, 2021, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, https://www.federalregister.gov/documents/2021/01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government.

^[40] DOJ GEN, DOJ GEN Hosts Panel Discussion — Addressing the Gender Leadership Gap (March 9, 2021) https://www.dojgen.org/what-we-have-done.

^[41] See DOJ GEN, What we’ve done so far!, https://www.dojgen.org/what-we-have-done.

^[42] 5 U.S.C. § 6382(d).

^[43] Executive Order (EO) 14035. Diversity, Equity, Inclusion, and Accessibility (DEIA) https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/25/fact-sheet-president-biden-signs-executive-order-advancing-diversity-equity-inclusion-and-accessibility-in-the-federal-government/.

^[44] Id.

^[45] Id.

^[46] Id.

^[47] Id.

About the Author

Mimi Tsankov is an immigration judge with the U.S. Immigration Court. She serves on the FBA board of directors. She is the president of the National Association of Immigration Judges (NAIJ) and writes this article in her NAIJ capacity.

About the FBA

Founded in 1920, the Federal Bar Association is dedicated to the advancement of the science of jurisprudence and to promoting the welfare, interests, education, and professional development of all attorneys involved in federal law. Our more than 16,000 members run the gamut of federal practice: attorneys practicing in small to large legal firms, attorneys in corporations and federal agencies, and members of the judiciary. The FBA is the catalyst for communication between the bar and the bench, as well as the private and public sectors. Visit us at fedbar.org to learn more.