By Jennifer Hemmer • August 14, 2018•Ms. JD, Careers, Other Career Issues, Issues, Sexism, Sexual Harassment, and Other Forms of Discrimination, Other Issues, Features, Myths & Truths
Regardless of a woman’s age, race, location, career or economic status, most have either experienced sexual harassment first-hand or know of someone who has. With the numerous allegations made in the past year against Harvey Weinstein and dozens of other powerful figures in Hollywood, the media and politics, and the explosion of the #MeToo movement, the prevalence of sexual harassment in American society has never been more exposed than it is right now.
There has not been a formal study conducted on sexual harassment specifically in the legal field, until now. Lauren Stiller Rikleen, founder and President of the Rikleen Institute for Strategic Leadership, and the Women’s Bar Association of Massachusetts have conducted an extensive survey of lawyers regarding their experience with workplace harassment, bullying and retaliation. The study (available here) lays out some grim findings. Not only does the study break-down the percentage of respondents who have experienced or witnessed varied types of harassment in the workplace, it also breaks down the affirmative responses in detail; by when the incidents occurred, the size of the respondent’s firm, whether the incidents were reported, and whether the respondent was an associate or partner at the time of the incident.
Attorneys are tasked, in general, with knowing the rules and helping our clients navigate them. That in and of itself can be the source of a problem; when an offender knows he’s not supposed to openly retaliate against a colleague or subordinate, and if he’s an attorney with any knowledge of employment law, he may very well know ways to get rid of or punish anyone who rebuffs or reports him without obviously retaliating, e.g. providing less work to that person, creating a record of negative reviews, socially isolating or poisoning others against that person, etc. In response to almost every question in this survey, respondents did not officially report what they experienced or saw. Time and time again, fear of retaliation was cited as a major reason why the respondent did not report.
The survey report also delves into toxic firm culture and “death by a thousand cuts”—a pattern of indirect harassment in the form of denigrating humor, sexually inappropriate conversations and bullying. These microaggressions, even when not aimed at an employee directly, can create an environment of fear and discomfort. Survey respondents reported hearing co-workers and superiors denigrate others for their appearance, weight, sexual orientation, parental status, among many other things. Survey respondents also reported being sent inappropriate material, including pornographic images.
Another striking outcome of this survey is the number of respondents who commented on the insolation and protection of known offenders because the offender was a “rainmaker” or senior leader in the firm. The philosophy behind such actions is extremely flawed and short-sighted. Yes, to punish or terminate a top money-maker may cost a firm in the immediate future, but keeping that person around opens up a firm to financial liability, negative reputation, bad publicity, and high turnover of attorneys and staff. This last cost looms the largest. A great majority of respondents being subjected to harassment were younger and in a subordinate position to the offender. When a firm prioritizes a badly behaving rainmaker over the staff and associates he is harassing, that firm will likely lose those employees, requiring the expenditure of time and money to hire and train replacements. That firm, however, is also losing out on the untapped potential of those departed employees, possibly losing out on a whole class of future rainmakers and leaders, in the interest of protecting their own immediate bottom-line. The attrition of female associates means there are likely fewer women becoming partners and firm leaders, which feeds into this cycle of harassment and protection of harassers. While some firms may choose to actively protect high-producing offenders, there are likely many who unknowingly fail to protect employees from harassment out of sheer ignorance due to unclear or antiquated policies.
The recommendations given by the survey’s authors center around education and accountability. As obvious as one might think an offender’s behavior is, it should never be assumed that anyone but the victim knows of the behavior or how to appropriately address a complaint when made. The survey authors warn against commiseration and avoidance as strategies, as those options are ineffective and avoid addressing the problem head-on. They also recommend creating, implementing and publicizing clear harassment policies, with defined lines of authority and reporting processes, and creating a respectful firm culture that encourages reporting and supports victims. Firm culture is key to avoid bullying and pervasive denigrating humor, and to embolden bystander intervention. While the results of this survey paint a picture of a troubled population with an unacceptable amount of harassment—direct or indirect—taking place, the recommendations given are practical and direct. Attorneys and law firms should be leading the way in this area and making #metoo a thing of the past.
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 The survey had more than 1,200 voluntary respondents sourced from the Massachusetts legal community.