Law’s Missing #MeToo Moment? Law360 Satisfaction Survey 2018 Identifies Harassment and Discrimination of Women Lawyers

The Law360 Satisfaction Survey always makes intriguing reading – providing, in U.S. lawyer’s own words, a far reaching analysis of level of happiness in the industry, the best firms to work for, and of course key insights into diversity and gender representation. This year, in light of the #MeToo movement that began in Hollywood, the subject of sexual harassment is also a talking point.

Among the things we learned were that even with the prospect of high earnings, law graduates are bogged down and stressed by student debts as other graduates, with nearly a third grappling with six-figure debts, leading to many putting off major life events such as starting a family.

We also saw some evidence of progress being made in terms of more women lawyers in firms led by women from the Glass Ceiling Report, though that progress was deemed to be lagging in larger firms, and fairly static overall in the five years that the survey has been conducted, as explained by editor-in-chief Anne Urda. However, there was a particular finding in the Satisfaction Survey that put this picture into an uncomfortable context: Women lawyers were still reporting, in startling numbers, incidences of direct gender discrimination and sexual harassment. Shockingly, a third of female respondents report having experienced sexual harassment, and more than half said they had faced discrimination. Meaning we’re not just dealing with a lack of action or effective measures to encourage women in law – women are still actively being shut out, shut down and even harassed and assaulted because of their gender.

Lawyers are Saying #MeToo – Are They Being Heard?

The Attic recently published some of the derogatory things that are said to women in law. With credit to those on the receiving end, those women recounted their experiences with clarity and, in some instances, wry humour. That doesn’t make it ok for any of them – and it’s impossible not to get angry on their behalf when faced with such stories and statistics that should have no place in any society, let alone in the year 2018.

Lawyers are widely perceived as being pragmatic and stoic in nature. Though passionate about the rule of law and justice for the people they deal with, they achieve these aims in a reserved and reasoned manner. They understand more than most the importance of process and the harm that a bad one can do for both accused and accuser. They exchange mostly in polite scrutiny of their industry, because they approach issues with a level head, but also perhaps out of fear that any sense of anger or outrage could hurt their reputation. And we all know the negative responses that follow when a woman publicly expresses a feeling about something… We are perhaps unlikely then to see some the type of attention drawing activism that has been part of the #MeToo movement and Time’s Up campaign in Hollywood, but that doesn’t mean there hasn’t been a concerted effort to use the momentum of the now international conversation to draw attention to the issue in the legal industry.

But many feel the industry needs to go further – beyond investigating individual instances of misconduct – and actually requires a culture overhaul, according to speakers on a panel at the American Bar Association‘s annual meeting Thursday in Chicago. How can those in the industry make this cultural shift happen? Will it need a pivotal #MeToo moment to create real change?

Power and Privilege

In a feature for Vice, a group of lawyers discussed the conduct of former United States Circuit Judge Alex Kozinski, and an interesting point was raised about the power structure of court life tenure federal judges and law student carrying the aforementioned burden of debt – losing out financially simply isn’t an option for many young lawyers, so they are more likely to put up with wrongdoing against them. These hierarchical arrangements in courts must be discussed as well as how people starting out in law can be safeguarded from abuses of power.

Before conversations were happening in public, many women put the responsibility on their own shoulders to prove themselves and perform better to convince people that they were not just sexual objects. Once conversations came out in the open more, the men on the panel recounted conversation with other men who began to question whether they could say wrong thing, and there was a backlash of fear of the movement. There was also the suggestion that some may choose to not hire women at all because of the ‘risk’, or exclude them from career development opportunities such as events and business dinner.

As the group lamented, if the response to #MeToo and reports of sexual inappropriateness in the industry is to limit women’s opportunities further, it hasn’t even begun to cause the culture shift that is needed. That excluding women altogether from job opportunities or events is even mooted as a solution is deeply concerning. All too often the burden is passed to victims to either tolerate the behaviour or accept a space is not for them because of the behaviour, rather than challenging the behaviour itself. This needs to be tackled as broader concern.

The Precipice of Change

However, the positive is that people now feel they can speak more freely about what has happened to them, and there is no going back from that.

Participants at the American Bar Association Annual Meeting event this month agreed, with co-founder of Time’s Up Legal Defence Fund Tina Tchen saying: “we are at an inflection point where we can shift what is going on in our workplaces.”

It is important to not view the issue of sexual harassment in isolation, the ABA president and chair of the panel Hilarie Bass  said: “What we are really talking about is building workplace cultures that are very diverse and very inclusive in every sense of the word. And that we are equipping managers and workers at law firms how to treat each other better in order to change the way workplaces operate.” And there have been moves in many organisation to make ‘say something do something’ a part of workplace policies and training, making everyone responsible for inclusivity and wellbeing. Secrecy and innuendo allowed Harvey Weinstein to get away with what he did for a long time, so a culture of openness needs to nurtured. We can’t simply rely on victims to tell their stories; those who are unaffected have to be vigilant and willing to challenge wrongdoing openly.

Panellist Nicole VanderDoes expands on the discussion in the Legal Network On The Road podcast. Her advice to people entering the profession or who have experienced troubling behaviour is to check what procedures and reporting mechanisms have been set up in their organisation for dealing with uncomfortable behaviour and misconduct. She also reminds us that those who might prefer to take the route of excluding women further to avoid the issue are also legally liable for this kind of discrimination too.

In others words, all in the industry must keep the conversation going, and leaders must continue to listen and to implement tangible measures against harassment and discrimination, to ensure we don’t see statistics like these again in 2019.