“The future is female.”
“Feminism is for everybody.” (bell hooks)
“No mansplaining.”
Signs with messages like these used to hang on the doors of three prominent female prosecutors in the Third Judicial District Attorney’s Office. They were denouncements of sexism. They were declarations of solidarity with female survivors of violence they’d advocated for. They were messages of hope for achieving gender equity.
But for some men in power at the DA’s Office, these signs represented only one thing: insubordination. In June of 2018, Chief Deputy Attorney Gerald Byers ordered Rebecca Duffin, Cass Brulotte, and Kelly Rossi to remove their “No Mansplaining” signs from their doors, claiming the statement was “sexist against men” and violated office policy.
It didn’t matter that the term “no mansplaining” is in fact a rebuke of sexism and a humorous way of reminding men to respect women’s expertise. It didn’t matter that just a day before the elected District Attorney, Mark D’Antonio, had complimented Rossi on her “proud displays of feminism.” And it didn’t matter that prior to the incident, all three women had endured and raised concrete instances of harassment and sexism to Human Resources. All that mattered was that Byers wanted the signs removed at once.
"By this time, all three women had already endured rampant sexism, harassment, and retaliation. They weren’t about to give up their First Amendment right to speak out against it."
“One of the other signs I had was a Margaret Atwood quote ‘men are afraid women will laugh at them; women are afraid men will kill them.’ I’ve had that quote in every office I have worked in, for as long as I’ve been an attorney, because I’ve always worked with domestic violence victims,” said Brulotte. “I explained to Mr. Byers how important I thought the signs were for women as a symbol of support. He told me they violated office policy—though he would not tell me what policy they violated—and that they had to go.”
By this time, all three women had already endured rampant sexism, harassment, and retaliation. They weren’t about to give up their First Amendment right to speak out against it.
In each of their meetings with Byers, they asked to speak with D’Antonio about their signs. Rather than allowing them to do so, Byers informed them that he was taking the request as a refusal to comply with his instruction and immediately suspended them.
More Work, Less Pay
The sexism that came to define their everyday experiences at the office began on day one with unequal pay.
In July 2016, Rossi was hired as a trial attorney and quickly began to handle challenging, high profile cases. Within just a short while she was carrying the caseload of a typical senior trial attorney and handling more cases than most of her male colleagues. But Rossi earned less money than almost all of them.
“It’s demoralizing when you know that you’re putting forward superior work on difficult projects and not getting the same recognition or pay as male colleagues,” said Rossi. “Certainly I was capable of handling the cases and that’s why they were assigned to me, but there was a reluctance to treat me as an equal.”
Rossi raised the issue of unequal pay with two separate supervisors in 2017 and again in 2018 to no avail. Even after D’Antonio nominated her for the District Attorney Association’s Wayne Johnson Jurisprudence Award (which she later won) in recognition of her superior work, he did not promote her. Rossi had to submit a formal request for a promotion, citing a job advertisement for senior trial attorney sent to every member of the state bar, before she finally received one.
Brulotte joined the district attorney’s office with six years of litigation experience. Yet the salary she was offered was five thousand dollars less than four other men who had substantially less experience than her and who were hired around the same time for parallel positions. She had to negotiate to receive the salary the men were offered automatically.
Within just a few short months, she earned a reputation as a fierce litigator and champion for women and children. But her hard work was not rewarded. When a district court attorney position became available, management offered it to one of her subordinates, who had less than a year of experience. Knowing he didn’t have the requisite experience to handle the additional responsibilities that came with the position, he turned it down. Management then offered the promotion to another male subordinate with even less experience.
"...the salary she was offered was five thousand dollars less than four other men who had substantially less experience than her and who were hired around the same time for parallel positions."
“I was furious,” said Brulotte. “I called the only female deputy DA and I said to her, ‘you say I’m a great attorney, you say I’m doing great work, so what is the reason I am being passed over for a promotion if it’s not sexism?”
Duffin received public recognition for her expertise and dedication to her work as well. When the State Bar of New Mexico named her Domestic Violence Prosecutor of the Year in 2015, D’Antonio said in a public statement he was proud that “her hard work and dedication” on extremely difficult cases had such “a huge impact on the well-being of our children, our families, and our community.”
Even after her achievement, Duffin continued to earn less money than her male colleagues, though she handled substantially more cases and supervisory duties.
Pay discrimination was one of the reasons many members of the staff decided to form the first ever union at a district attorney’s office in the state in November 2017. For Brulotte, Rossi, and Duffin it was an easy decision to vote in favor.
Harassment and Retaliation
Receiving less money than male counterparts for the same work was disheartening for all three attorneys, but it was the toxic culture of harassment and retaliation that brought them to a breaking point.
For Rossi, one of the worst experiences occurred in April 2017 when D’Antonio and Byers called her into a meeting and told her they needed a “pretty young prosecutor” at the table during a highly publicized murder trial, explaining they feared an attractive attorney at the defense counsel’s table might steal the jury’s attention.
"My role was circumscribed to being the pretty lady at the table and then the sweet, nurturing female attorney...It was humiliating."
“I worked extremely hard to get a law degree from a very well-respected school so that I could pursue my passion of litigating crimes involving women and children,” said Rossi. “Their request made me feel like my contributions weren’t noticed or didn’t matter.”
During the trial, Rossi provided advice on jury selection and litigation strategy, but the men ignored her. The only witness they allowed her to question was the victim’s wife because they thought it would look more “sympathetic” for a woman to talk to her.
“My role was circumscribed to being the pretty lady at the table and then the sweet, nurturing female attorney to elicit emotional testimony from a grieving widow,” said Rossi. “Everyone at the office knew and as a joke they started calling me ‘Ms. Third Judicial District Attorney.’ It was humiliating.”
Brulotte knows all too well what it’s like to be told she must embrace and obey sexist stereotypes in order to succeed at work. In June 2018, even as she suffered constant harassment from a male colleague who would call her lewd sexual names and insist she must wear skirts to win her cases, her direct supervisor formally disciplined her for not smiling enough, especially to her male colleagues, and accused her of contributing to “low office morale.”
“We had endemic sexism at the office, but somehow I was accused of causing low office morale,” said Brulotte. “I didn’t walk around smiling all of the time because I was dealing with gender discrimination and 400 domestic violence and sexual assault cases, many of which were extremely upsetting.”
Brulotte’s supervisor told her she had to “come outside of her comfort zone,” and start smiling and saying hi to each and every person she passed as she entered and left the office. Yet, management never expected the same from male staff or held them accountable for sexist actions.
Even after an incident where Byers became so irate with Duffin in a staff meeting that he slammed his notebook on the table, threw a pen in her direction, and stormed out of the room, he never faced any consequences. Instead, after Duffin raised concerns about his conduct in a Human Resources complaint, Byers retaliated by nearly doubling her caseload.
In the end, management not only signaled to female staff that their only value was in their appearance or how they made the men in the office feel, they also sent a clear signal to the women that if they spoke up they would be punished.
Taking a Stand
Less than a month after Brulotte and Duffin were suspended, the DA’s Office fired them. No longer able to work in such toxic conditions, Rossi resigned.
By July, three exceptional attorneys had been forced out of their jobs after years of dedicated service to their office and community, all on account of their gender and their refusal to be silenced on matters of personal and public concern.
“They felt confident enough to fire all of the female line attorneys at once without cause because they have been treating women this way for years, and have been getting away with it,” said Brulotte. “We’re not the first women this has happened to at that office.”
Their careers as prosecutors in Doña Ana County may be over, but their fight for justice isn’t.
The ACLU of New Mexico and cooperating attorney Rachel Higgins agreed to represent Brulotte, Duffin, and Rossi, and on April 29, we filed a lawsuit against the Third Judicial District Attorney’s Office for violating the Fair Pay for Women Act, the Whistleblower Protection Act, and the New Mexico Constitution’s Free Speech Clause.
"The ACLU is fighting to obtain justice for Brulotte, Duffin, and Rossi at a critical moment as our country reckons with the reality of enduring and pervasive sexism and sexual abuse in the workplace."
“As arms of law enforcement, state prosecutors are tasked with the responsibility of promoting safety and wellbeing in our communities,” said ACLU of New Mexico staff attorney María Martínez Sánchez. “When those who have been entrusted with the power to prosecute our fellow citizens are the very ones inflicting harm, the damage to society is severe and lasting. We must hold the office accountable for abusing its power.”
The ACLU is fighting to obtain justice for Brulotte, Duffin, and Rossi at a critical moment as our country reckons with the reality of enduring and pervasive sexism and sexual abuse in the workplace. In a 2016 survey by the Center for Work Life Law at UC Hastings College of the Law, one quarter of female lawyers said they encountered unwelcome sexual encounters or harassment at work, and 70% of female lawyers said they’ve dealt with sexist comments, stories, and jokes.
This kind of sexism, harassment, and abuse is not confined to the legal field, but rather a common experience for women across all walks of life, including the very women that Brulotte, Rossi, and Duffin have all worked to protect in their careers as attorneys.
“We’re bringing this lawsuit not just because of the injustice we faced, but for the community of Doña Ana County,” said Rossi. “If the DA’s office can inflict so much harm on its own female staff members, how can we trust it to obtain justice for the countless female victims of domestic and sexual violence the office serves? The community deserves to be represented by attorneys who respect and value women and who are passionate about promoting gender equity and justice.”
