The legal profession cannot escape its own #MeToo moment, but it can respond to the voices emerging from the silence by implementing meaningful changes. This is the key lesson learned from a groundbreaking survey conducted by the Women’s Bar Association of Massachusetts.
In response to the #MeToo movement and the enormous focus on workplace behaviors that profoundly impact careers, the WBA, in partnership with the Rikleen Institute for Strategic Leadership, developed a survey to provide greater insight into the law firm environment. The survey results demonstrated that by ignoring negative conduct and bullying behaviors, law firms are paying a price in terms of employee engagement, higher attrition, diminished reputation and increased litigation risks.
The major theme that emerged from the report is that unchecked power imbalances serve as the foundation for, and perpetuate, inappropriate behaviors in the workplace. In the vast majority of survey responses, the incidents described happened to associates or to others in the firm who were young or were otherwise in a subordinate role.
Further, the survey responses demonstrated that negative behaviors in law firms are not confined to firms of a particular size. From bastions of Big Law to small firms with few partners, respondents shared examples of conduct that ranged from specific incidents of sexual harassment, to a locker-room atmosphere of inappropriate jokes and uncomfortable remarks, to outright bullying and hazing.
Nor were the incidents described relics of a bygone era. For each question, a significant percentage of the respondents stated that the incidents occurred between 2010 and 2018. It is clear that the behaviors described are contemporary concerns that firms of all sizes must treat seriously.
For example, nearly 38 percent of the respondents stated that they had been the recipient of or copied on an unwelcome email, text or instant message of a personal or sexual nature at work, of which nearly half noted that the incident occurred between 2010 and 2018. These behaviors included inappropriate messages from lawyers in supervisory roles, comments on the physical appearance of young female lawyers, and numerous examples of images being shared that contained sexually explicit photos such as pornography or links to videos that respondents described as “vulgar” and “inappropriate.” In some examples, images seemed meant to ridicule same-sex relationships.
Questions about the prevalence of sexual or disparaging humor and related remarks and bullying behaviors garnered the highest percentages of affirmative responses in the survey. Slightly more than 40 percent of the respondents stated that they had been present when comments or jokes were made that were sexual in nature or disparaging of other people or groups. The respondents described frequent gender-based jokes, including men referencing their sexual fantasies or exploits; commentary focusing on women’s bodies, specifically relating to breasts, sexuality, weight and maternal status; and jokes that involved race, religion, sexual orientation and gender.
Similarly, nearly 40 percent reported they had been the recipient of or had witnessed bullying behavior in the workplace. Respondents provided examples of partners screaming at or otherwise humiliating others in the firm, bullying that escalated to physical abuse or throwing of objects, and hazing behaviors such as feigning deadlines or delaying assignments to force associates to forgo planned vacations.
In both the question addressing sexual or disparaging humor and the question about bullying, 40 percent or more of the respondents stated that the incident occurred between 2010 and 2018.
A significant majority of the respondents did not report these behaviors to others in the firm. Their reasons for not reporting made clear that to do so carried grave risks and no clear benefits. Many stated that the offending behavior originated with someone in a position of direct authority or power over the respondent. Others observed that the perpetrators were often key rainmakers or star performers who were financially important to the firm. Respondents pointed to the lessons learned from others who had reported in the past and subsequently suffered retribution in the form of job loss, diminished assignments or social isolation within the firm.
Surprisingly, nearly 40 percent of the respondents did not know if their firm currently had an internal process for reporting behaviors of concern; 13 percent stated that their firm did not have a reporting mechanism.
Some respondents noted that even where there was a reporting process, they had no idea whether the firm actually investigated or took any action in response to reported behaviors because there was no further communication about it. Several others indicated that the investigations concluded with no action taken.
These examples, as well as the responses to other questions posed in the survey, reveal a profession that needs to focus on the daily experiences of those who work within it. To assist in that process, the survey report offers 17 recommendations that law firms can implement.
These recommendations address the importance of leadership engagement, internal assessment and analysis, policy development and implementation, systems of accountability, support for those who come forward to report, and the protection of anonymity when requested.
These measures, however, must be part of a comprehensive commitment to the creation of a safe and respectful work environment. For example, firms should consider annual courses on bystander intervention training, to help everyone learn how to respond when they witness someone else being harassed, bullied or otherwise made to feel uncomfortable. Too often, people who witness such incidents express regret for not having intervened, often stating that they simply did not know what to do. Bystander intervention training helps individuals develop strategies that can be employed to stop negative behaviors, or at least remove the target from the circumstances.
Another way firms can make a difference is to avoid “death by a thousand cuts.” Many of the survey respondents described incidents in which humor was used as a sword and a shield. They spoke of cultures where jokes that disparaged people based on stereotypical factors such as their race, gender, sexual orientation, ethnicity and religion were an everyday occurrence.
These remarks represent small cuts that can inflict lasting damage over time to those who are victimized by the comments. Too frequently, they also provide a protective shield, allowing the perpetrator to hide behind hurtful remarks laughed off as “just a joke,” while accusing the complainants of lacking a sense of humor. As stated in the report, humor that denigrates others is not funny. Individuals should be free to go to work without facing offensive comments justified as jokes, and not made to feel badly for failing to find the remarks humorous.
Many of the examples that survey respondents provided were behaviors that occurred at firm social events where the perpetrators had been drinking, and included unwanted physical touching or conversations that were uncomfortable. In some examples, the inappropriate comments or efforts at jokes were made from a microphone as part of a firm leader’s remarks.
Law firms should consider limiting or removing alcohol from firm-sanctioned events. Where firms feel that is not a feasible alternative, other protective measures should be put into place to monitor and respond to alcohol-fueled unwanted behaviors.
As the survey results demonstrated, sexual harassment and other behaviors that negatively impact workplace culture can be devastating to careers and economically harmful to organizations, leaving them vulnerable to disengaged and distracted employees, rampant turnover, and possible lawsuits. Every law firm has an obligation to provide a culture in which people can do their jobs in a safe and respectful environment.
Lauren Stiller Rikleen is president of the Rikleen Institute for Strategic Leadership and the author of the Women’s Bar Association of Massachusetts Survey of Workplace Conduct and Behaviors in Law Firms. She is the author of the upcoming book, “The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace.”