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Bullying and sexual harassment in the legal profession—us too?

NEW YORK—At the International Bar Association’s (IBA’s) Us Too event—conducted in conjunction with the release of the largest-ever survey examining the state of bullying and sexual harassment within the legal profession—panellists were sadly not surprised by the data and discussed how the industry could act to curb this damaging behaviour.

Co-hosted by Thomson Reuters, the event included panellists Hilarie Bass, founder of the Bass Institute for Diversity and Inclusion and Immediate Past President of the American Bar Association (ABA); Deborah Martin Owens, executive director of Diversity & Inclusion at the New York City Bar Association; Matthew Fernandez Konigsberg, Immediate Past President of the Hispanic National Bar Association-New York Region and an ethics attorney specialising in business ethics and public integrity; and, Lisa Hart Shepherd, CEO of UK research firm Acritas. Stephanie Brumsey, producer from Reuters, moderated the discussion.

Kieran Pender, of IBA’s Legal Policy & Research Unit in London, kicked off the event with the presentation of key facts from the report. Half of women reported bullying in the workplace, as did one-third of men, according to the report. Bullying, for the purposes of the survey, was defined as ‘aggressive behaviour or incivility by supervisors, colleagues, or third parties, which has a negative impact on working conditions or causes harm to the physical or mental health of the target’. Common experiences cited by both men and women included ridicule and use of demeaning language.

Regarding sexual harassment, one-third of women and one-in-14 men had experienced sexual harassment in the workplace. The most common experiences included sexual or sexist comments and inappropriate physical contact. Sexual harassment for the report was defined as ‘unwanted sex-related behaviour which has the purpose or effect of being intimidating, hostile, degrading, humiliating, or offensive’.

The data is not surprising

To kick off the panel, Brumsey asked the panellists to share their initial reactions. All of the panellists stated that they were not surprised by the data. Konigsberg said that he had experienced bullying himself in past jobs he has had as a lawyer, adding that unfortunately in the legal profession, most lawyers are loathe to ‘report’ on other lawyers.

Indeed, some of the more disturbing facts from the report concern reporting the occurrences of bullying and harassment, and the panellists kept coming back to the lack of reporting on incidents as a critical issue. According to the survey, 57 percent of bullying cases and 75 percent of sexual harassment cases are never reported. The top reasons cited in the survey were the status of the perpetrator, fear of repercussions, and the incident being endemic to the workplace.

All of the panelists stated that they were not surprised by the data…  [and one added], unfortunately in the legal profession, most lawyers are loathe to ‘report’ on other lawyers.

Owens spoke to the difficulty of reporting, noting that in the past when people had come to her for guidance on how to respond when bullying or sexual harassment occurred, she advised them to move to another job and not report the incident because of the threat of retaliation and the fact that the victim, in many cases, would experiences hardship in finding a job after a formal complaint at an employer is made.

“But what would it take to increase the numbers of reported incidents”, Brumsey asked. The panellists strongly suggested that the organisation’s leadership needs to be very clear on the penalties and consequences if the investigation of the incident finds that the accused perpetrator is found to have committed bullying or harassment. There is a “need to drive accountability that certain behaviours are unacceptable”, said Bass.

Moreover, the onus should not be just on the victims to report, but also on the observers, several panellists agreed. Also, another thing that would mitigate potential incidents is male partners calling out each other if a colleague makes an inappropriate comment about a woman’s appearance.

Other panellists cited that organisations need to make consistent training a part of their culture, especially to clarify what bullying and sexual harassment look like. “If you want people to get something out of it, real-life examples of situations that have happened to people must be the centre of the training, so that people can learn what appropriate conduct is”, said Konigsberg.

One person’s bullying

One of the challenges with addressing bullying in the workplace is that, unlike sexual harassment, the line between reasonable conduct and bullying is not precise. In other words, what is bullying to one person is may be explained away by another. “What do you do if an adversary… shakes your hand and squeezes it really hard to intimidate you”? On the surface, these situations look to be friendly gestures, Konigsberg said, but they may be bullying behaviour.

Acritas’ Hart Shepherd also said that the more subtle incidents of bullying are pervasive because they are normalised as acceptable behaviours within the culture of many firms. Indeed, those of the older generation view these subtleties as a way of ‘earning your stripes’. Another key problem in reporting is the fact that managing partners do not believe that it happens at their firms, Hart Shepherd said.

To mitigate the issues, the ABA defined discrimination and harassment in its code of conduct, and it has been adopted by half of the states. This was an important foundation to report unacceptable behaviours as an ethics violation.

Konigsberg spotlighted the importance of the ABA’s move by examining New York State’s Rules of Professional Conduct for attorneys, which has not adopted the ABA rule, as an example. New York’s Rule 8.4(g) outlaws ‘unlawful discrimination’ and does not specifically mention ‘harassment or bullying’. Thus, the alleged conduct must meet the definition of ‘discrimination’ and be ‘illegal’ as per criminal or civil law for someone to bring a valid ethics complaint against an attorney under Rule 8.4(g). Of course, New York’s rules provide other strong bases to bring a valid ethics complaint against a lawyer for alleged bad acts.

Finally, Brumsey asked the panellists to pick one of the top recommendations from the Us Too report that they think is critical to decreasing these incidents of bullying and sexual harassment. Tone at the top, taking ownership and training to clarify what bullying and sexual harassment is were all mentioned.

“Tone at the top is critical for accountability”, said Bass. “Without it, the rest of it is window dressing.”

For a copy of the IBA’s report Us Too? Bullying and Harassment in the Legal Profession, click here.

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