Bullying and harassment in the legal profession
Global Insight assesses the extent of the issue and analyses the causes as well as what needs to change
The legal profession has a serious problem. In the UK, one female lawyer had a phone thrown at her head by her principal, before a female practice manager suggested this principal might be nicer to her if she showed sexual interest in him. She’s not alone – by any means.
In Kenya, several lawyers at one firm have left or plan to, following ongoing bullying that the firm has failed to address. These stories emerged in responses to the IBA Legal Policy and Research Unit’s (LPRU) international survey, which was conducted in 2018.
Other responses show that this failure to combat bullying has very serious consequences. In New Zealand, another female lawyer says she ‘left the workplace, considered changing careers and contemplated suicide’. These stories, rather than being the exception, are instead the tip of the iceberg. Such experiences are endemic throughout a profession in which bullying has been normalised.
Sexual harassment has also been ignored. ‘Men would tell sexist jokes or say sexually suggestive things while they were around me in a work environment, which was unprofessional,’ says one female lawyer in the US, ‘but I didn’t realise at the time that it was also sexual harassment. I[t] was so widely accepted it seemed normal to me.’
The LPRU survey, the largest of its kind, was conducted in six languages, and received responses from 6,980 members of the profession from across 135 different countries. The resulting report, Us Too? Bullying and Sexual Harassment in the Legal Profession, written by LPRU Legal Adviser Kieran Pender, examines the ‘nature, prevalence and impact of these phenomena’. It reveals the staggering, but perhaps not surprising, pervasiveness of such conduct: half of the women respondents have experienced bullying. For men, it’s one in three. A third of the women respondents have been sexually harassed in the workplace. For men, it’s one in 14.
The survey sought to gather a range of quantitative and qualitative data to provide a comprehensive picture of bullying and sexual harassment in legal workplaces. Respondents include in-house lawyers, advocates, government legal professionals and the judiciary, as well as those in private practice.
Acknowledging that different cultures have different definitions of both bullying and sexual harassment, the survey provided its own, as well as specific examples of such conduct. The report states that across jurisdictions, ‘workplace bullying is typically understood as exposure to aggressive behaviour or incivility by supervisors, colleagues or third parties’.
Examples of bullying include being deliberately given too much or too little work; being excluded from activities and opportunities; ridicule or demeaning language; and malicious rumours. The survey found that bullying is most common in government legal workplaces and that younger members of the profession experience it more than their senior colleagues.
The report characterises sexual harassment as ‘unwanted sex-related behaviour’. Examples identified in the survey include sexist and sexually suggestive comments and jokes; propositions; inappropriate physical contact; implicit or explicit demands for sexual favours in exchange for work-related benefits; and physical assault or rape.
“Everyone knows what goes on. The harassment occurs out in the open and no one does anything about it. The other partners just stand there and let it happen
Law firm, Uruguay
As might be expected, it ‘disproportionately, but not exclusively, affects female members of the profession’. However, male respondents witnessed more incidents of sexual harassment than female respondents, perhaps suggesting that ‘women have become desensitised to low-severity sexual harassment, or that perpetrators are more likely to sexually harass in the presence of male... bystanders,’ the report says.
The male bystander theory is in line with qualitative responses from the survey. A male respondent at a law firm in Peru said that bullying and sexual harassment are ‘[commonly] considered normal, regular, tending to make you look more “macho” [and] better suited for the work.’
The report notes that the top four regions in which sexual harassment was most prevalent are also those where bullying is most prevalent, which ‘supports the conclusion that there is a relationship between the two forms of conduct and the factors that contribute to them’. Certainly, the stories and statistics indicate a problematic culture within the profession.
Pender says ‘there are a number of characteristics of our profession that make it particularly susceptible to these forms of conduct’.
Academic research on bullying and sexual harassment across different professions and workplaces highlights factors that exacerbate the problem. These factors include male-dominated leadership, hierarchical workplaces where there is a significant power imbalance between junior and senior members of staff, and where progression or day-to-day work is heavily dependent on the discretion of senior leaders. The legal profession, by its nature, ticks all of these boxes. One scholar suggested the ‘hypercompetitiveness’ exacerbated by the legal market’s globalisation ‘has resulted in increased levels of incivility’.
Pender acknowledges that bullying and sexual harassment are ‘elements of a bigger picture about diversity, inclusivity, positive working environments, work-life balance/satisfaction, and mental health, which all come together to contribute to workplace culture’. He suggests that less bullying and sexual harassment might occur if the profession was more diverse and inclusive, but that ‘at the same time, such high rates of bullying and sexual harassment are a barrier to a more diverse and inclusive workplace’.
That barrier may be even larger than the statistics suggest. In its methodology section, the report explores a potential ‘perception paradox’, through which greater social awareness of the issues and ‘commonplace workplace utilisation of policies and training may have contributed to above-average reported rates in certain jurisdictions and workplace types’. Conversely, jurisdictions with abnormally low rates may be examples of a lack of awareness, rather than good behaviour, as respondents from such areas may not associate the conduct they experience with these labels.
For Pender, ‘none of that is an excuse for the jurisdictions with higher rates. The exact numbers are almost not relevant. Until we get to zero per cent, more can and needs to be done’.
Until the rates of bullying and sexual harassment are brought down, individuals suffering such conduct need to be protected. Despite the sheer scale of the problem, the report identifies ‘chronic underreporting’, with 57 per cent of bullying and 75 per cent of sexual harassment incidents never reported.
It seems there are serious deterrents to reporting, which include the status of the perpetrator and the fear of repercussions. For some targets of bullying or sexual harassment, such deterrents form part of the bullying. One woman working in a barristers’ chambers in New Zealand told the survey that the ‘Senior Counsel threatened to slit my throat if I ever repeated some [of the] things he had said to me.’
When an incident is reported, workplaces are not responding appropriately. The report concludes that ‘official responses are considered insufficient or negligible, perpetrators are rarely sanctioned and, in many cases, the situation is exacerbated’.
Where violence is threatened or present, perpetrators are only marginally more likely to be sanctioned. One of the survey respondents wrote that ‘nothing happens to the partners’, and it may be that this reluctance to sanction perpetrators is related to the financial incentive model of law firms. As such, the report identifies the key role that senior lawyers play in facilitating or exacerbating such conduct in the workplace and, to borrow a phrase from another context, silence is complicity.
‘This conduct is unacceptable in any profession. But, it is particularly unacceptable in our profession because it’s predicated on the highest ethical standards,’ says Pender. ‘Many bars, law societies and regulators around the world require lawyers to be of good character. If you’re a bully or a sexual harasser, you are not of good character.’
“I have witnessed, and complained about, in excess of 20 examples of workplace sexual harassment, bullying and victimisation in my career and on every occasion that workplace has ignored the issue and further victimised and/or dismissed the person complaining of workplace sexual harassment, bullying and victimisation. The perpetrators have never been called to account for their conduct
Law firm, Australia
The report provides ten recommendations for all members of the legal profession, which ‘are underpinned by the empirical findings of this survey, extensive secondary research and consultation with stakeholders’ (See box: Report recommendations).
One recommendation is to ‘implement and revise policies and standards’ regarding bullying and sexual harassment in the workplace. The report found that only one in five legal workplaces educate their staff to prevent and properly respond to such incidents, and while over half of legal workplaces have policies, these are not sufficiently effective.
However, policies and training can be effective when tailored to the workplace. Training can help eliminate problematic behaviour when both internal and external providers deliver it effectively.
At the report launch in London this May, Dame Laura Cox DBE, former Justice of the English High Court, discussed bystander intervention training, which educates members of the profession on how safely to call out inappropriate conduct when it occurs. Addressing transgressions immediately, but sensibly, shows support for targets and tactfully signals that the perpetrator’s behaviour is unacceptable.
Policies should be continually updated and staff made aware they exist. Christine Young, a partner and Chair of the Women Lawyers Network at Herbert Smith Freehills, says ‘policies should not be seen as a standalone document, but part of an organisation’s culture.’
Young notes that workplaces ‘can have the most effectively constructed policies in place, but if people do not act in accordance with them, and buy into their value, an organisation will see little impact.’
Another recommendation focuses on raising awareness of the issue in general, ‘for leaders of the profession, who are best placed to achieve change; for targets and future targets, to know that they are not alone and to help minimise stigma; and for all of us, to motivate individual and collective efforts’.
Employers need to be enforcing these policies with fairness and sensitivity. Catering for flexibility in reporting methods is essential to ensure that targets of bullying and sexual harassment feel there is an appropriate channel for their needs, with consequences that match the severity of the perpetrator’s behaviour. The report found that underreporting of less severe conduct was often down to targets’ concerns about excessive punishment. It might be helpful to offer an avenue that does not lead to direct action, but which contributes to a bigger picture of workplace culture that employers can monitor.
Elise Groulx Diggs, Vice-Chair of the IBA Business Human Rights Committee and an associate tenant at Doughty Street Chambers, is ‘happy to say that young women are leading the way to change’ and believes that their efforts also need to be supported by the more senior women members of the profession.
Groulx Diggs recalls that ‘we were taking as inevitable this kind of bad behaviour when we entered a world completely dominated by men a few decades ago. This is not the case anymore and young women are much more prone to express themselves. This is a good thing. Bringing this phenomenon out into the open is the best deterrent.’
The #MeToo movement played an important role in bringing global attention to inappropriate conduct and was a key inspiration for the LPRU’s research. However, Young acknowledges the ‘high-profile stories that we have seen in this space (particularly in the #MeToo campaign) feature primarily female survivors – we need to make conscious efforts when we speak of these issues [that] we do so with gender-neutral language’.
She adds that ‘all victims face considerable challenges in coming forward, but male victims may face unique barriers, particularly because of how men are socialised and expected to behave in our society’.
It’s clear the legal profession has a systemic issue with bullying and sexual harassment, with roots in its culture and structure. The report concludes that ‘it is incumbent on all members of the profession to work together to address these issues, because the findings of this research are damning upon us all.’
Horacio Bernardes Neto, President of the IBA and a senior partner at law firm Brazilian Motta Fernandes Advogados, says: ‘the legal profession has regularly been called upon to advise other sectors on these issues. Our ability to advise effectively and drive broader societal change is undermined if we do not address the risk of hypocrisy’.
Bullying and sexual harassment are driving talented people out of the profession, with over a third of sexually harassed respondents to the report having left or are considering leaving their workplace. About ten per cent have left or are considering leaving the profession entirely. Meanwhile, over half the respondents who said they’d been bullied have left, or might leave, their workplace and one in seven have left or are considering leaving the profession.
Such high turnover presents a business case for change, as well as there being clear moral concerns. As one female respondent at a law firm in the UAE wrote, ‘there should be absolutely no place in this profession, nor any other, for bullies or sexual harassers. At the very least, people deserve dignity and a safe, supportive environment in return for their work.’
While this data offers necessary insight into the prevalence and impact of such conduct, it also offers an opportunity for change. One female survey respondent wrote that, in Chile, the past 15 years had brought an ‘incredible advance’ for the better. With greater awareness and by working together, the legal profession can ensure that these advances continue.
Jennifer Sadler-Venis is the IBA’s Content Editor and can be contacted at email@example.com
To download Us Too? Bullying and Sexual Harassment in the Legal Profession, go to: www.ibanet.org/bullying-and-sexual-harassment