| ACLU of New Mexico

“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.”

Date

Thursday, May 30, 2019 - 12:00pm

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Read more about Standing Up To The Man: How three female attorneys fought back against rampant sexism at a New Mexico district attorney’s office

One of the axiomatic truths of the legislative session is that it’s really hard to pass a good law. Believe us, we know. The ACLU of New Mexico has worked tirelessly year after year to advance legislation that makes our state a more just, free, and safe place to live and raise families, but year after year we see most of our priority bills fall victim to a torturous legislative process filled with a myriad of pitfalls, minefields, and political quagmire.

It was especially tough during the past eight years of the Martinez administration. Throughout her tenure as governor, Susana Martinez’s legislative agenda included doubling down on mass incarceration, vetoing digital privacy bills, implementing voter suppression schemes, working to restrict abortion access, and demonizing immigrant communities.

“The previous administration was a disaster for civil liberties in New Mexico,” recalls Steven Robert Allen, the ACLU of New Mexico’s Director of Public Policy. “We were forced to spend most of our time and energy desperately fighting back bad bills. Aside from notable exceptions like signing a ban on civil asset forfeiture in 2015, Governor Martinez vetoed every single piece of civil liberties legislation we managed to pass.”

"By the end of the 2019 legislative session, the ACLU of New Mexico had eight bills in its three strategic priority areas passed by the legislature and signed by the governor..."

But last year, all that changed. The 2018 elections brought a new governor into the Roundhouse and fresh blood into the legislature, creating for the first time in over a decade a discernible path for progressive legislation to become law. It was a once in a generation opportunity to break the log jam and advance the cause of freedom and fairness in New Mexico. We weren’t about to let the opportunity pass us by.

As an organization, we identified three key strategic areas of work: reproductive freedom, immigrants’ rights, and criminal justice reform as our top priorities for proactive work in New Mexico. With an eye towards advancing legislation in each of these key areas, the ACLU of New Mexico began expanding its capacity by hiring organizers, policy experts, and communications staff, coordinating strategies in coalition with allied organizations, and building power in communities directly affected by these issue areas.

These investments paid off in a big way. By the end of the 2019 legislative session, the ACLU of New Mexico had eight bills in its three strategic priority areas passed by the legislature and signed by the governor - more than any legislative session in the ACLU of New Mexico’s nearly 60 year history.

A Wave of Reform for New Mexico's Criminal Legal System

The most overwhelming area of success was in the area of criminal law reform, accounting for more than half of the bills the ACLU of New Mexico helped pass this session. Over the past three decades, New Mexico’s prison population has grown a staggering 481 percent as lawmakers imposed increasingly harsh sentences as part of the War on Drugs. Rather than increasing public safety, these so-called “tough on crime” sentencing laws have torn thousands of families apart and disproportionately affected women and people of color.

“Our state has been held back for a generation because of this outdated and ineffective approach to public safety,” said Barron Jones, Smart Justice Coordinator for the ACLU of New Mexico. “We set ambitious goals this legislative session to reform our criminal justice system, prioritize people over prisons, and implement real public safety solutions that tackle the underlying causes of crime, not just the symptoms.”

Part of the key theory of change on this issue has been centering people who have been personally impacted by the criminal legal system, including formerly incarcerated people, family members, and survivors of crime. The ACLU of New Mexico formed a Smart Justice Advisory Board led by community members to drive the work, and invested countless hours organizing and training activists. These efforts culminated in a lobby day at the legislature where dozens of Smart Justice volunteers made personal appeals to legislators on why New Mexico needs criminal law reform.

“We set ambitious goals this legislative session to reform our criminal justice system, prioritize people over prisons, and implement real public safety solutions that tackle the underlying causes of crime, not just the symptoms.”

“The biggest victory in my eyes was the way we were able to get the community to show up and help fight for legislation,” said Jones. “It was major to see folks really engaged in the process and eager to speak truth to power. Many folks weren’t aware that they could be involved in the process.”

The personal experiences that the Smart Justice volunteers were able to share with legislators and influencers helped humanize criminal justice issues and change the conversation around reform. Formerly incarcerated people could speak personally about how criminal record expungement and banning questions about prior arrests and convictions on initial employment would help them move on with their lives and successfully reintegrate into society. Crime survivors could speak powerfully about their desire for a justice system that prioritizes treatment and rehabilitation over incarceration. When we advocated for reforming the brutal practice of solitary confinement in New Mexico correctional facilities, Justice Advisory Board Member Kelly Garcia was able to speak from personal experience about what it is like to spend years on end locked in isolation in a cell the size of a parking lot.

“To this day I’m still tormented,” remembered Garcia as she struggled through tears to share her story before a bank of TV cameras at a press conference during the session. “There are times that I just wanted to jump out of my skin and run. If I’ve got to tell my story a thousand times to help just one person, then I’m going to do it, because solitary confinement is real.”

Because of brave advocacy from Garcia and others, solitary confinement reform passed this session, along with bills that expunge criminal records, reduce employment discrimination against the formerly incarcerated, decriminalize marijuana possession, and a myriad of other reforms.

Expanding Access to Reproductive Healthcare

As Trump continues to pack the U.S. Supreme Court with anti-abortion justices, reproductive rights nationwide are threatened in a way not seen for a generation. New Mexico is fortunate in that we have been able to fend off many of the restrictions placed on abortion in other states, but the future of reproductive healthcare access nationwide is very much in peril. Looking into this uncertain future, we worked with allies in the reproductive health and justice communities to put forward a legislative agenda to make New Mexico a place that continues to respect women’s reproductive decisions no matter what.

The expanded supply greatly reduces barriers New Mexicans face accessing contraceptive care, especially for people living in rural parts of the state where the nearest pharmacy may be many miles away.

This legislative session we scored a significant victory when Governor Lujan Grisham signed a bill we helped craft that greatly expands contraception access for New Mexicans. Not only does the new law require insurance companies to cover, without out of pocket costs, an expanded range of contraception for both men and women, as well as cover over the counter methods without a prescription. It allows for the dispensing of up to a six month supply of contraception at once. The expanded supply greatly reduces barriers New Mexicans face accessing contraceptive care, especially for people living in rural parts of the state where the nearest pharmacy may be many miles away.

Unfortunately, we weren’t able to get our second priority bill across the finish line. HB 51, a bill that would have removed a dangerous and outdated pre-Roe v. Wade law from the 1960s that criminalizes abortion care in New Mexico, was voted down on the Senate floor after passing the House and Senate committees. By removing the criminal abortion statute from our law books, we would ensure that no one is criminalized for seeking health care in New Mexico and secure uninterrupted access to abortion care if the U.S. Supreme Court to reverses Roe v. Wade.

It was a big disappointment to see HB 51 fail on the Senate floor, but the fight is far from over,” said ACLU of New Mexico Reproductive Rights Attorney Ellie Rushforth. “The simple truth is that abortion is healthcare, and healthcare isn’t a crime. The governor has been outspoken in her support for protecting access to reproductive healthcare, as have many legislators. We’re confident that we’ll have another opportunity to remove this offensive and harmful language from our laws.”

Maria Coronado - Immigrant Day of Action

Fighting for the Dignity and Safety of Immigrant Communities

One of our top priorities heading into legislative session was to promote laws that would make New Mexico a place where immigrants could live in safety and dignity. Immigrants have been an integral part of New Mexico’s story for hundreds of years and immigrant families continue to be valued members of our communities today. Unfortunately, Trump’s administration has been ramping up its racist and xenophobic rhetoric while implementing anti-immigrant policies designed to tear apart families and deport as many people as possible.

To fight back against Trump’s deportation machine, the ACLU of New Mexico joined a coalition of immigrant rights organizations to advocate for SB 196, a bill that would prohibit any state law enforcement resources from being used to enforce federal immigration laws, as well as limit jails’ authority to hold federal immigration detainees. Several cities and counties in New Mexico have already implemented similar policies to ensure that immigrants who are victims or witnesses to crimes do not fear calling the police when they need help.

“It was really incredible to see how community members, regardless of whether they were personally impacted or not, came together in support of immigrant families.”

To mobilize support for SB 196, the ACLU of New Mexico joined a massive organizing effort to reach immigrant communities in every corner of the state. Staff from the Albuquerque office worked with the ACLU of New Mexico Regional Center for Border Rights in Las Cruces to hold a series of trainings to equip hundreds of local activists with tools to help them lobby their legislators in support of immigrant rights bills, as well as bills in our other priority issue areas. In late January, the freshly trained army of activists joined hundreds of other community members at the state capitol for the Immigrant Day of Action, one of the largest lobby days to ever occur at the Roundhouse.

“We had over 800 people from all over New Mexico at the rally itself,” said Stephanie Corte, the ACLU of New Mexico Immigrants’ Rights Campaign Strategist. “It was really incredible to see how community members, regardless of whether they were personally impacted or not, came together in support of immigrant families.”

Unfortunately, despite the strong show of community support, the legislature failed to prioritize SB 196 and it died in committee. Though disappointing, it won’t be the end. Our efforts helped send an unmistakable message that New Mexico values and welcomes immigrants, and built critical momentum that will help move us closer to passing a “no resources” bill in subsequent sessions.

We did however, manage to pass our other priority immigrants’ rights bill, SB 278, which fixes New Mexico’s driver’s license law by removing stigma from the current two tiered system and eliminating the fingerprinting requirement that deterred undocumented people from applying for a license.

A Giant Leap Forward

All together, these legislative achievements constitute a giant leap forward for civil liberties in New Mexico. Moreover, these victories stand as a testament to the power and spirit of the New Mexican people. Our state has never been the largest or the richest, and we’ve always struggled with our share of problems. But the hundreds of ACLU volunteers who came out this session to help fight for more fair and just policies demonstrated that we have an abiding love for our communities and a dedication to improving the lives of all New Mexicans.

As our politics at the national level become increasingly ugly, hateful, and violent, New Mexico made bold strides in the opposite direction. In the policies and laws that bind us together as a society, we chose compassion over hate. We chose to give second chances to people swept up by the criminal legal system. We expanded critical healthcare for all New Mexicans. We extended a hand of welcome to immigrant families. Together, we moved New Mexico, and by extension all of America, a little bit closer to the ideals of freedom and fairness wherein our nation’s true greatness lies.