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EXECUTIVE PERSPECTIVE: The Real-World Implications of #MeToo – Transforming the Legal Ecosystem

FiscalNote, Her Justice

10 Dec 2018

“the goal of these discussions—to tap into curative behaviors and leverage data and analytics for proactive solutions…”

This perspective provides an update on an engaging series of #MeToo round-table discussions with some of the nation’s most senior lawyers and business leaders.   These discussions have been focusing on how to bring systemic change from a series of tactical, hard-fought wins.  It’s a process which is gaining momentum as the world gains increasing transparency on how corporations, investors and law firms are managing these opportunities and risks.  The stakes are rising.  Tim Nixon, Managing Editor, Thomson Reuters Sustainability.

NEW YORK – A year after the first #MeToo headlines, “The Real-World Implications of #MeToo –Transforming the Legal Ecosystem,” a series of candid, off-the-record roundtable conversations for senior corporate lawyers and executives, is revealing how lawyers are uniquely positioned to effect positive change and what their resources and responsibilities are in the current environment.

After highly successful roundtable events in April and June, the third in the roundtable series—hosted by FiscalNote, Her Justice and Thomson Reuters at the offices of Cravath, Swaine & Moore LLP in New York City on November 6—gave lawyers a space in which to continue their frank, off-the-record conversation about the role they can play in the #MeToo movement.

The program was developed by Dave Curran, Senior Vice President & Chief Business Officer at FiscalNote, and Joe Kennedy, a committed advocate for women’s rights, working with the team from Her Justice, to address the missing piece in the sexual harassment puzzle: the role of lawyers. The goal of the roundtables is to explore root causes of this systemic problem and to identify practical steps lawyers can take to be part of the solution. Curran facilitated the November conversation and introduced Thought Leaders, Amy Barasch, the Executive Director of Her Justice, a nonprofit that provides free legal services to New York City women living in poverty, and Natalie Runyon, Head of Thought Leadership, Talent Platform, Legal Executive Institute at Thomson Reuters.

Investors look at computer screens showing stock information at a brokerage house in Shanghai, China June 20, 2018. REUTERS/Aly Song – RC1AAD186210

Curran described the goal of these discussions—to tap into curative behaviors and leverage data and analytics for proactive solutions, rather than reactive lawyering. He explained that each session’s objective is to engage participants in creative, heartfelt thinking, and produce actionable takeaways. Having a nonprofit organization that exclusively deals with women living in poverty participate in the roundtable ensures that trends from outside the boardroom inform the conversation.

Barasch explained that, since Her Justice trains and mentors volunteers from more than 80 of the city’s law firms and companies to provide services to its clients—connecting private attorneys with women in poverty—it operates at the nexus of many #MeToo issues. Barasch addressed the often unseen parallel between #MeToo and intimate partner violence: they are both situations of abuse of power. In each case, historic systemic bias means current systems do not always hold those responsible accountable for abuses. About 80% of Her Justice clients are victimized by their partners, and all of the same dynamics—fear of reprisal for reporting, coercion and silencing—are familiar tactics to Her Justice. For women facing abuse at work AND at home, it is almost impossible to imagine being in a position to ask for redress in either context. Providing free legal representation to these women enables the private attorneys to shift their power to the clients and level the playing field for them.

Natalie Runyon, Head of Thought Leadership, Talent Platform, Legal Executive Institute at Thomson Reuters, shared her insights about the juncture between diversity & inclusion initiatives and the #MeToo movement. She emphasized the importance of considering the entire employee experience, where sexual harassment can be viewed as an extreme example of a negative employee experience. Runyon added that, when companies consider risk mitigation strategies, they must embed values of empowerment, inclusiveness, and respect into their cultures and described the positive impact of facilitating difficult conversations.

Participants then engaged in a lively discussion, sharing their own perspectives and experiences. Discussion topics included:

  • Sexual harassment: long-term liability versus short-term exposure to lawsuits
  • The role of in-house lawyers and outside counsel
  • Considering the entire employee experience spectrum
  • Embedding values of empowerment, inclusiveness, and respect
  • Transparency: facilitating difficult conversations and enabling respectful conflict
  • “Tone from the top” and holistic approaches
  • Specific definitions and a well-defined process
  • Identifying bad actors before they are hired
  • Tackling the issues for global businesses

There was consensus that it’s necessary to shift the focus from legal obligations and papering over bad behaviors—designed to protect clients and lawyers—to a more evolved and inclusive notion of ethics in general. While roundtable participants generally agreed that transparency is critical in building cultures of trust, they also discussed the potential for increased lawsuits. Although liability in individual cases is a concern, more companies are viewing sexual harassment claims as a long-term liability that may be worth the upfront exposure to wrongful termination and defamation lawsuits.

One executive with a major technology company contributed key takeaways from her company’s efforts to address sexual harassment. While misconduct is rarely clear-cut, that high-profile company is now specifically defining what constitutes inappropriate behaviors wherever possible and follows a transparent, well-defined process when dealing with any claims. This methodology could be applied within other corporate structures, as organizations benefit from outlining specific codes of ethics and the consequences that result when issues arise.

What is more, outside counsel and in-house teams can work together to root out bad actors. Outside counsel is often asked to address misconduct without the full context and under a limited scope, meaning that the investigation or other action taken can be subject to limitations. Participants shared their own experiences as outside counsel, discussing the dynamic between outside counsel and in-house counsel and corporate boards with regard to investigations that uncovered patterns of problematic behavior. In-house counsel participants offered their thoughts regarding ways to develop more trust between in-house and outside counsel.

“Tone from the top” has been an important theme in the #MeToo roundtables, but participants at November’s gathering emphasized the need for a holistic approach at every level of management. Companies with enthusiastic leadership may still experience issues with sexual harassment if the organization has not created a well-defined culture of inclusion and respect at all levels. Education and training play an important role in establishing these norms.

However, top performers with airtight contracts who face few repercussions for misconduct, as well as those who leave a company for reasons of sexual harassment or misconduct with large termination payments, can undermine employees’ and the public’s confidence in a company’s otherwise good-faith efforts to develop an ethical corporate culture. This highlights the need for organizations to pay as much attention to how employees enter the organization as to how they exit when addressing sexual harassment. It’s often possible to identify potentially troublesome players before they join a firm or company. In both hiring and in the context of mergers and acquisitions, leadership should heed warnings and eliminate contaminants before they enter the system. Attendees also observed a shift away from nondisclosure agreements and forced arbitration, underscoring the need for independent reporting processes and fair investigations.

These issues become more complex given the global nature of business today. A company’s culture is embedded in the various regional or national cultures in which it operates, and all factors must be considered when addressing workplace sexual harassment. There are no easy answers to such complicated questions, and tackling sexual harassment may seem daunting. However, there is significant cause for hope.

As the #MeToo roundtable series demonstrates, a wide range of lawyers and executives seek true change in the business world, and lawyers are uniquely qualified to effect that change. These motivated parties can build networks to take action side-by-side. They should also work with others at all levels of business, particularly the women and men most vulnerable to sexual harassment. As Tim Nixon, Head of Sustainability Thought Leadership at Thomson Reuters, reminded attendees, there is a strong business case for building safer, more inclusive, and more empowering corporate cultures. When lawyers leverage the data and embody leadership, they have real power to make a difference.

Editors Note: Kaitlin Curran contributed to this report.

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