Is the Legal Profession Immune from Claims of Sexual Harassment? No Profession is Immune.
In March of 2020, a report on the prevalence of sexual harassment in the legal profession in the U.S. was released. The project relied on a survey of attorneys in every state, ranging in ages from new attorneys to those of retirement age. The survey included women and men. The survey focused on discovering statistics like: (1) What types of behavior were still occurring within the legal profession and the frequency; (2) the gender of the victim; (3) the reporting behavior of the victim; and (4) the consequences to the harasser. Sadly, while some aspects of the harassment landscape have changed over the years, the behaviors have not disappeared, and with respect to receptiveness to reporting, and meting out consequences to harassers, the profession has not responded well as a whole.
The report, titled "Still Broken: Sexual Harassment and Misconduct in the Legal Profession," covers a wide range of behaviors loosely categorized as harassment, without seeking to determine whether such behaviors rose to the level of being classified as "legally" sexual harassment under Title VII. For purposes of prevention efforts, though, such legal distinctions matter little. Prevention focuses upon eliminating the behaviors that can lead to a hostile work environment. Preventing the behavior is the way we assure that it does not in turn cause a legal issue. And preventing the behavior is the only way to assure that all employees feel comfortable and welcome in the workplace, and the workplace culture is one that will not support harassment.
As to whether the culture of the organization allows harassment, one measure of the survey was to determine whether, in the minds of the respondents, the culture exhibited a frequency of harassment from "rare" occurrences to offenses happening "often." In one sign of good news, there was a change in percentages in these categories from 30 years ago to the present.
Of the respondents, 75% of the females had direct experience of the harassing behavior. 92% of the respondents were female. Of the males who responded (7%), 22% had direct experience with harassing behaviors. In 91% of the situations described, males were the harasser, while females represented 6% of the harassers.
Most troubling are the statistics for "consequences" for the harasser where 50% of the harassers suffered no consequences, and in another 20% of cases the victims were not aware of any consequences.
In 5% of the cases, the behavior worsened.
As to reporting, the behavior was not reported in 51% of the cases. Where the behavior was reported, the response by the organization was not helpful, or was even harmful, in 41% of the cases. The barriers to reporting were identified as the common ones in many organizations, including fear of job loss, reporting obstacles (like the harasser is in a position of power), fear of not being believed, or that nothing will happen, or the victim chose to handle it on their own. Victims reported many of the most common consequences of reporting, such as anxiety, loss of self confidence, fear of retaliation, loss of productivity, negative impacts on careers and loss of employment. Most troubling were the reports of harassment at the hands of clients or judges.
The survey includes findings on six points:
The extent and breadth of misconduct/harassment are insidious and alarming.
Reporting systems intended to discourage harassment and capture harassing incidents are mostly not working.
Most harassers face few to no adverse consequences.
The "price" that victims, women in particular, pay and the cost to organizations and the profession are considerable.
People at every level, including women in powerful positions, are being harassed.
Age, Race/Ethnicity and Gender Identity are perceived as compounding dimensions.
The question for those in the legal profession: What can we do to improve this situation? If you have been reading my blog, and my book, and many other sources, you know that preventing harassment requires an intense focus on many facets of the working environment.
Leaders must study the causes and consequences of allowing harassment in the workplace, and make a determined effort to assess the culture and environment in their own workplace.
Create policies with maximum potential effectiveness, and widely disseminate them, repeatedly calling attention to those policies. This includes policies that encourage reporting, that promise nonretaliation and support for those who report, that allow for multiple avenues for reporting, and that rewards those who support reporting and penalizes those who do not support reporting.
Create procedures, and publicize them, that encourage prompt action to investigate all complaints, and take appropriate corrective action.
When a complaint is validated, impose real consequences for the harasser. Make sure that the victim and the workforce understand that the consequences are real for those who engage in the behavior. Leaders must understand that allowing the behavior is as costly as retaining a high performer who harasses. Be transparent about your response and expectations.
Provide training for all employees on respectful behavior, sensitivity about professional boundaries, sexist behavior, implicit bias, and the value of diversity. Include training on bystander responses "see something, say something", such as intervening and reporting inappropriate behavior. Repeat the training regularly.
Assess the culture regularly to root out problems early.
We can do better. We must. The world is watching.
PS The study cited is solely about sexual harassment. We must also refocus our efforts on preventing and eliminating harassment based on other protected classes such as race, national origin, ethnicity, disability, age, religion, sexual orientation and gender identity.