“The more things change, the more they stay the same.” – French writer Jean-Baptiste Alphonse Karr in 1849
It’s been almost three years since I addressed the ways to combat sexual harassment in the workplace in the wake of #MeToo. Since then, we’ve witnessed scandal after scandal exposing those who used their power and influence to engage in pervasive predatory behavior that went largely unchecked for years, leaving countless causalities in their wake. Unfortunately, this wider cultural trend has permeated the legal profession as well and is showing no sign of waning, despite increased public outcry.
For much of my nearly forty-year career, I have been writing and speaking about bullying and bias in the legal profession, often lamenting the glacial pace of progress in tackling one of the toughest barriers to advancement for women, minorities and other historically marginalized groups. In the past year, two separate reports have chronicled the pervasive problem of sexual harassment suffered by lawyers at the hands of their colleagues, superiors and judicial officers.
On various occasions, I shared highlights of the International Bar Association (IBA) Report “Us Too? Bullying and Sexual Harassment in the Legal Profession,” released last year on the results of the IBA survey of roughly 7,000 legal professional from 135 countries on bullying and sexual harassment in the profession, the largest survey of its kind to date. The Report focuses primarily on bullying, with nearly half of the respondents, without regard to gender, reporting being bullied at work (when broken down, more than half of women, about one-third of men, and over two-thirds of non-binary participants reported being targets). Bullying behavior included ridicule and demeaning language, overbearing supervision, piling on of unreasonable workload and unproductive criticism.
The IBA survey also reported on sexual harassment in particular, showing that the impact on women was far more severe than their male counterparts with 37% of women, only 7% of the men and 43% of the non-binary respondents reporting being sexually harassed in a legal work setting. If we remove gender from the equation, 22% or approximately 1 in 5 people surveyed worldwide state that they have been sexually harassed in a professional setting. This invasive and violating behavior included sexist or sexual comments, inappropriate touching, propositioning and assault.
It should come as no surprise that targets of bullying and harassment are reluctant to report the offenses for fear of retaliation by the often more powerful perpetrators. Nor should it be a surprise that most who do take the risk of coming forward find the response of their employers inadequate or non-existent.
Just last week, a new study was released that honed in on the prevalence of sexual harassment in the profession, building upon IBA’s already disturbing data. Women Lawyers on Guard, Inc. (WLG)’s Report “Still Broken: Sexual Harassment and Misconduct in the Legal Profession,” shares findings from their survey completed in August 2019 of over 2,100 United States lawyers on their experience with sexual harassment in the profession. The respondents, 92% of whom were female, 7% male and 1% otherwise identifying, reflected “significant current evidence of sexual misconduct and harassment,” concluding that “[t]he system of addressing sexual harassment in the legal profession is ‘still broken.’” It was distressing, but not eye-opening, to read that 75% of the female respondents stated they personally experienced sexual harassment, compared to 7% of the male respondents (notably the same 7% from the IBA study with an international pool).
WLG’s research is particularly noteworthy in that it sought to study whether harassment has declined over the past thirty years in light of greater awareness, more policies and enhanced training. Unfortunately, yet for many predictably, the situation has not improved generally within the profession. Some of the most troubling conclusions from this hot-off-the-presses Report is that the conduct is pervasive, that targets continue to refrain from reporting due to fear of negative consequences to their careers, and that people in positions of power (i.e., firm leaders, clients, and judges) cross the line and get away with it. Additionally, the research found that lawyers at the highest levels of the profession, especially women, are not immune from sexual harassment in a work context.
Another important trend that this new research brings to light is the economic ramifications when a powerful person leaves their position due to harassing behavior. It is not surprising that a harasser wreaks emotional havoc on targets and observers and that impact is debilitating long-term even after the perpetrator is gone. But the harasser may move on to another firm and repeat the pattern while taking their hefty book of business and clients with them without economic fallout to them. But compounding this offense, is that the harassers leave behind “collateral victims” – men and women who lose the work that walks out the door with the wrongdoer who continues to be enriched by a loyal client following. Clients can make an impact here by asking the departing partner and the former firm why they are leaving and whether any misconduct precipitated the move. This is particularly important when an individual who manages a significant client portfolio is firm-hopping as that is a red flag that a pattern of impropriety may be occurring.
Having practiced for many years and having represented many lawyers leaving firms and legal departments, I have observed firsthand sexual harassment as a particularly odious form of bullying that continues to infect our profession. Many of us have written about the importance of promulgating and enforcing clear and effective policies, conducting frequent and intensive training, ensuring confidential reporting without retaliation, and competing fair prompt investigations, but these alone are clearly not working.
A seismic shift requires the courage of firms and legal departments to stand up to perpetrators and cut them down at the knees, by doling out repercussions that match the severity of the behavior as well as eliminating gag clauses that muzzle victims from discussing settlements or the underlying events. But even more important than that is requiring all lawyers joining your firm or legal department or doing work for you as a client to provide a disclosure as to whether they have ever been the subject of a harassment claim and the disposition of that claim. If employers and clients start insisting on transparency, their actions will shed a bright light on the dark and dirty corners of the profession that we all know exist and need to be unearthed. Further, by holding individuals accountable for this type of behavior, legal leaders can break the cycle of mistreatment rather than perpetuating it. Hopefully, then and only then, will I have a more uplifting update to share in another three years.