At a time when a wave of sexual harassment and misconduct claims against high-profile men has roiled politics, the media and a variety of industries, law firms are suddenly contending with the reputational and legal risks associated with a potential claim of sexual misconduct or gender discrimination.
Even the handling of legal work for a man accused of sexual misconduct in this environment of heightened awareness can have a negative impact on a firm. Prominent lawyers and large law firms have yet to become direct targets of lawsuits alleging sexual harassment, but a law firm facing claims of any kind of gender discrimination could be at risk.
This means firms under scrutiny for gender discrimination based on pay equity or promotion may consider settling early if they fear there’s a chance that harassment allegations would come to light during the course of litigation, according to lawyers who have either litigated employment claims against law firms or study the legal profession.
“I don’t counsel corporate clients, so I don’t know firsthand that they’re worried, but they damn well better be because there are consequences,” said Lori Andrus of Andrus Anderson, a lead lawyer for a former Steptoe & Johnson LLP associate embroiled in litigation accusing that firm of gender discrimination involving pay disparities.
The widespread public discussion surrounding harassment issues, and developments like the “#MeToo” movement in social media, have created an environment in which women who step forward with accusations of misconduct will be believed in a way they often haven’t been in the past, said Deborah Rhode, director of the Center on the Legal Profession at Stanford Law School.
“I think the current climate is going to empower more women to come forward because they see there are fewer professional [consequences],” Rhode said. “People are being believed and they aren’t being dismissed as whiners who can’t make it on the merits.”
The legal industry is not immune to issues related to sexual harassment, although complaints do not arise as much there as in some other sectors, such as pharmaceutical sales and the hospitality industry, according to employment lawyers.
This could be in part a result of the law firm world having taken steps to clean up its act on the sexual harassment front earlier than some other industries, Rhode said. She pointed to a high-profile sexual harassment lawsuit from the 1990s in which Baker McKenzie was hit with a $3.8 million judgment after a former secretary at the firm alleged she was groped by a former partner. (The partner, Martin Greenstein, left Baker McKenzie in 1993 and has since run his own boutique intellectual property firm, according to his profile on LinkedIn.)
“My own sense is that one reason you haven’t seen lawyers figuring so prominently in the lists of men behaving badly is that they got a wake-up call somewhat earlier,” Rhode said.
But large law firms have suffered from pay and promotion disparities between men and women lawyers. And several firms, including the former Chadbourne & Parke, Proskauer Rose and Winston & Strawn, currently face gender discrimination lawsuits alleging unequal pay.
And not all firms come out looking squeaky clean on the sexual harassment front. Some of those gender bias cases also make harassment claims. A Jane Doe complaint against Proskauer, for instance, references comments that senior partners allegedly made about Doe’s appearance. But the cases have stopped short of making the egregious types of sexual misconduct claims that have been leveled against such figures as film producer Harvey Weinstein and former NBC television personality Matt Lauer.
Even putting aside the harassment allegations, the law firm complaints tend to describe a male-dominated atmosphere, which the plaintiffs allege contributed to lower pay and fewer promotion and business generation opportunities for women lawyers.
Harassment and pay equity are on the surface distinct issues, but they often arise from a similar underlying environment, Andrus said.
“The suppression of women’s wages is tied to the suppression of women’s power, and I think that’s true in the legal world,” said Andrus. “We are only 5 percent of managing partners and that number hasn’t moved in a decade.”
There’s also a question of a possible spillover effect: whether the recent stream of public, high-profile harassment accusations in other industries could affect law firms that face gender discrimination claims now or at some point in the future.
David Sanford of Sanford Heisler Sharp, who represents current and former women partners in the Chadbourne and Proskauer lawsuits but also handles many employment disputes outside of court, said he’s seen signs in recent weeks that employers of different stripes might be more interested now in striking global settlements that would resolve both a pay equity dispute and a harassment claim. So in his view, the current public mood surrounding harassment issues is most likely to affect a pay equity case if it also includes some sort of harassment claim.
“I don’t think there’s necessarily spillover impact on [pay discrimination cases] unless it turns out there are instances of sexual harassment claims to be brought,” he said.
Rhode said she’ll be watching the pending gender bias suits in the law firm world and elsewhere to see whether they move more quickly toward a settlement now, as opposed to how they might have been handled before the cascade of sexual misconduct revelations.
“I think this is not a good time to be a defendant in a case involving gender discrimination,” she said.