We often applaud and bestow accolades on leaders who champion diversity and inclusion within their organizations or the profession generally. Most of these leaders have not experienced being an outsider, but they have become outspoken allies for marginalized groups within our profession. We appreciate their support, but it is not nearly enough. Unfortunately, we often overlook the unsung heroes who stand up to discrimination, harassment and bullying, even at great risk to their careers. Our profession can only achieve genuine diversity, inclusion, equity and elimination of bias when the people in the trenches can speak out against bias without fear of retaliation.
Let’s face it: as reflected in the movie “Bombshell,” a fictionalized account of the misogynistic culture at Fox News under Roger Ailes, and the tsunami of #MeToo claims precipitated by allegations against movie mogul Harvey Weinstein, many people in power openly abuse their position. Meanwhile, most victims and witnesses remain mute due to the proven consequences of speaking out. In “Bombshell,” it was not until the network’s superstars came forward, that scores of other women, less “prominent” women, came out of the shadows. The fear and intimidation that these women felt in the entertainment industry is experienced by many in the legal profession whether they face discrimination, harassment or bullying based on gender, age, race, sexual orientation or other bias. Most targets of unfair or hostile treatment toil in silence fearing that speaking up will be the death knell for their careers – and that’s because often it is. As many of my clients report, those who speak up often face ostracism, unfounded critiques of their abilities, and exclusion from desirable work. Even in an era when “Diversity” and “Inclusion” are popular buzzwords, and law firms and legal departments tout their efforts to overcome traditional barriers to entry and advancement, in many cases, there is a lot of sizzle, but no steak.
On May 14, 2019, the International Bar Association released a report on its survey of nearly 7,000 legal professionals from 135 countries. The results were disturbing, but not surprising to many. Roughly 1/3 of men, over 1/2 of women and almost 3/4 of non-binary respondents reported that they had been bullied at work. Further, 40% of women and 32% of men reported that they observed others being bullied at work. Looking at the women respondents, for example, more than half said they never reported these incidents. Most troubling, is that of those who did report bullying at work, less than 3% said the workplace response was excellent, compared to over 72% who said the workplace response was either negligible or insufficient.
If women celebrities and women at top tier law firms in the world do not feel safe from improper advances and worse, what does that mean for the mother trying to support her family by working at a supermarket, factory, restaurant or retail store or anywhere else in corporate America for that matter? How does she stand up for herself when those of us with more resources and job opportunities are afraid to do so? As the founder of three women-owned businesses, one of which is a law firm, I know firsthand the daunting challenges of going out on your own. Very few of us have the luxury of being able to take that risk. Notably, despite the risk, more and more women, minorities and members of the LGBTQ+ community are striking out on their own and creating workplaces receptive to diverse talent. Consider the growth of professional organizations, such as the National Association of Minority and Women Owned Law Firms, Women Owned Law, Girl Attorney and the National LGBT Bar Association, which provide support to lawyers who left traditional firms often due to these types of issues.
Increasingly, institutional clients are recognizing the value of this diverse talent that is often undervalued and in turn are pushing law firm vendors to diversify their teams and provide genuine opportunities for everyone to excel. They are also opening doors for diverse-owned firms filled with talented lawyers who had the courage to create their own business. We applaud and celebrate those change agents as they have the power of the dollar to make a difference and some of them are using it.
However, there is still much more that needs to be done to dismantle the structures that support bullying and harassment and instead provide a safe and supportive landing for those who report this behavior. We must applaud and support the individuals who have the courage to speak up when they experience exclusion and bias themselves or observe it happening to others. As we’ve witnessed time and time again, for the rare person who takes that jump without a parachute, there are many others who keep quiet out of fear. We need a cosmic shift from a culture of shunning to a culture of supporting. Here are concrete steps that law firms, legal departments and clients can take to protect people who have the courage to call out impropriety:
- Enforce Written Policies. A disappointing number of organizations spend considerable resources drafting anti-discrimination policies and consider themselves standard-bearers in the D&I arena. Yet, too many of those policies are not widely disseminated, the parties subject to them are not trained on abiding by them or reporting violations, the people intended to be protected are not informed on how to make a report or assumed they will be protected from retaliation, or there is no inadequate or inconsistent discipline applied. A good policy is only effective if it is disseminated, implemented, understood and enforced.
- Hold Powerful Leaders Accountable. We all know that law firm practice is a business, and bringing in the rain is the power currency in most settings. However, if bullying and harassment is tolerated for fear of losing a rainmaker with a substantial book of business, firms will suffer in the long-run. When individuals who are subjected to discrimination, harassment or bullying and bystanders remain silent or are rebuffed, the results can include burn out, turnover, and litigation – all of which are a hit to the bottom line. We need to have the courage to call out inappropriate behavior and expel those who engage in it. Rainmakers who cross the line should not be able to persist unrestrained and immune from sanction, as these patterns of unethical behavior are likely to continue with each new wave of hires.
- Mandate Disclosure of Inappropriate Conduct. Clients with clout are increasingly requiring outside lawyers to disclose their track record for hiring and retaining diverse talent. They are also requiring disclosures about potential malpractice or disciplinary proceedings. However, the same has not been true for disclosing discrimination and harassment claims. In the start-up world, entrepreneurs have begun including “candor clauses” in their agreements with investors, requiring them to disclose prior allegations of discrimination or sexual harassment as part of the business relationship. If law firms, other legal employers and clients mandated that lawyers disclose whether they have ever been the subject of a claim of discrimination, harassment or retaliation, the stigma faced by complainants would shift where it belongs – to the culprits of these pernicious practices. Disclosure of this type of wrongdoing should be mandated as this abuse poses as great a threat to our profession as negligence and ethical lapses, indeed it equally reflects on our fitness to practice.
- Eliminate Mandatory Confidential Dispute Resolution and Gag Orders. Many legal and other employers require, as a condition of employment, that any disputes be resolved through mandatory confidential arbitration. Similarly, they require that any settlement reached be subject to non-disclosure provisions. Increasingly, lawyers are balking at these terms because they shield bullies and harassers from exposure, allowing them to continue their abusive behavior. In recent years, our next generation of leaders in law school have been objecting to these terms and urging boycotts of firms that insist on these constraints. As law firm leaders, we should have the courage to challenge provisions that limit a victim’s ability to expose abuse.
- Focus on Substantive Roles, Not Quotas. For several years, some of the largest corporations, with the greatest legal spend have promulgated or signed on to policies setting minimum quotas for woman and diverse attorneys at their outside firms. Those quotas are motivated by overcoming the frustratingly slow progress firms have made in diversifying their leadership and their ranks. Unfortunately, these measurements are not enough to accomplish genuine inclusion as they don’t address the root of the problem but rather the outcome. Firms compete to attract top talent but there is a revolving door of diverse talent due to lack of opportunities combined with bias and harassment once they get in the door. Progress requires that law firm cultures fundamentally change, so that all lawyers on your team, regardless of gender, race, gender identity, disability or other characteristics, are afforded the same chances to do meaningful work on sophisticated matters for important clients. Quotas alone will not solve this but equitable treatment of all employees will.
- Engage Women and Diverse Owned Firms. Similarly, imposing diversity quotas on firms does not address supplier diversity, namely affording capable women and diverse-owned firms a fair shot at doing work they are highly capable of performing well and often more economically. The road to legal success is littered with women and diverse Big Law refugees who have started their firms in the hope of having a fair shot at reaching their full potential despite the obstacles they faced. Genuine progress requires tackling elimination of bias and equal opportunity on multiple fronts, not just at the largest and most powerful firms. The Commonwealth of Pennsylvania should be commended for its exemplary RFP process that takes into account all of these factors in selecting outside counsel, affording firms of all sizes an equal opportunity to win plum assignments based on their merit and their demonstrated track record on diversity.
As legal leaders, we need to do more than conduct surveys, issue reports and congratulate ourselves for promulgating ambitious policies. We need to take tough action to counter the imbalance of power between abusers and targets, whether that abuse is in the form of discriminatory animus, retaliation, harassment or assault. Law firms, clients and colleagues are all stakeholders in the profession, and as leaders, we need to set the example within our organizations and to the business world generally that these actions will not and cannot be tolerated. In doing so, we will be showing the courage that it takes for an individual who is targeted or one who observes misconduct to speak out. Lawyers are responsible for setting the tone on how to handle these matters and it’s long overdue that we actually do so.
Reprinted with permission from the March 5, 2020 issue of The Legal Intelligencer. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.