After the revelations of Harvey Weinstein’s egregious harassment behavior

#MeToo Reports in the Legal Industry

Headlines soon became rife with #MeToo reports, implicating notable names such as Matt Lauer, Kevin Spacey, and Al Franken. It didn’t take long for the movement to spread to the legal industry. Soon women were sharing disturbing reports of harassment and assault from the bar and the bench. Among them:

• In December, six former clerks and externs for the U.S. Court of Appeals for the Ninth Circuit said Judge Alex Kozinski subjected them to sexual comments and advances. One said Kozinski showed her pornography; another said he shared his “knock list,” a compilation of his sexual conquests from college.
• In February, RollOnFriday reported that a senior partner at Baker McKenzie sexually assaulted a female associate. He was “sanctioned” and later promoted.
• In March, Law360 broke the story of Bill Voge, the chairman of Latham & Watkins LLP, who resigned after reports of inappropriate conduct involving “communications of a sexual nature.”

While some may say it’s ironic, it’s also embarrassing and enraging that the very industry that offers anti-harassment training, policies, and counsel now finds itself the subject of #MeToo headlines. Indeed, Kozinski himself heard harassment cases from the bench, and both Latham & Watkins and Baker McKenzie have award-winning employment practices.

Scope of the Issue

Up to 40 percent of women in the legal profession will experience sexual harassment, according to professors at Southern Methodist University and Stanford University. In law firms, two-thirds of women report having seen or experienced harassment. The question is not “Can this happen here?” but rather, “Shouldn’t we know better?”

Why Does #MeToo Happen in Law Firms?

Given that lawyers have been at the forefront of sexual harassment policies and procedures, why does this bad behavior happen in law firms? One simple answer is that, cocktail party jokes aside, lawyers are human, and humans are fallible creatures. However, there’s more to it than that — specifically, the psychology at the core of our very personalities and our institutional structures.

In "Herding Cats: The Lawyer Personality Revealed," Dr. Larry Richard charted personality traits that were more prevalent in attorneys than in the general population. Two of these, autonomy and skepticism, certainly could be factors in law firm harassment.

Dr. Richard’s data showed that lawyers’ autonomy scores generally averaged around the 89th percentile, compared with the general population at the 50th percentile. Lawyers are almost twice as likely to resist being managed, to resent instructions and policy — and to perhaps think the rules don’t apply to them.

Meanwhile, Dr. Richard reported that skepticism was the highest scoring trait among lawyers, with an average around the 90th percentile. While cynicism is beneficial when planning a cross-examination or negotiating an M&A deal, the problem is that some lawyers can’t turn it off. As Dr. Richard writes, “... the skeptical litigator may be well-suited for adversarial encounters, but this same litigator will maintain the skeptical stance in partnership meetings, while mentoring younger lawyers, or heading up a committee” — or, it’s fair to assume, handling an allegation of sexual harassment — “despite the fact that these situations may all be performed more effectively in a climate of trust, acceptance, and collaboration.”

In short, given our psychology, lawyers are more likely to think they’re above the law, and we may even be less inclined to believe the complaint made by a peer.

The traditional law firm structure also plays a part. Our reliance on rainmaker revenue is a significant challenge. As Joanne Grossman, a professor at Southern Methodist University, told The Careerist, “Bad behavior is tolerated because of competing values. There’s as much pressure to keep a great rainmaker as there is a TV star who brings in a lot of money. If [the harasser] is someone fungible, he might be dealt with appropriately.”

This power imbalance often quashes action. Grossman, who researched harassment in the legal industry, said only 8 to 10 percent of affected women will file a complaint: “They see what happens to other people who do — they’re cut off socially and professionally. What pushes people to complain is they think the situation so bad that they have nothing to lose. Most will quit or ask to be transferred. Or they’ll drink a lot.”

In large firms, far-reaching geography is another factor: Attorneys and staff in a satellite office may not ever meet anyone in human resources or know anyone outside their immediate chain of command where they could possibly report a claim of harassment.

Autonomy, skepticism, rainmaker culture, off-site centralized human resources departments: These are reasons, but they cannot be excuses.

What Do We Do About It?

There’s one very positive thing about the law firm model: Multiple partners own the business, and as business owners, we can and must demand change and set a higher standard.

The American Bar Association has provided a roadmap. Earlier this spring, it adopted Resolution 302, which "urges all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent and promptly redress harassment and retaliation based on sex, gender, gender identity, sexual orientation and the intersectionality of sex with race and/or ethnicity."

The ABA shared nine best practices, including the distribution of a clear statement that harassment will not be tolerated; confirmation that the policy applies to management at all levels — including every partner — at all locations, inside or outside the office; and the prohibition of retaliation against accusers or witnesses.

These are pillars of a positive workplace, to be sure. But to me, the ABA recommendation that will bring about the greatest change is the call to provide “alternative methods for reporting violations of the policy, including methods which do not involve any accused party, and at least one anonymous reporting method.”

Of all the ABA provisions, this goes to the heart of the #MeToo movement. Most law firms have training and well-phrased anti-harassment statements. But how many provide a secure and reliable channel to report harassment anonymously? We must acknowledge that our current reporting structures don’t work — again, many attorneys and staff do not know anyone in human resources, and many victims are intimidated to go up the rainmaker-friendly organization chart.

Anonymous reporting mechanisms allow staff and lawyers alike to safely and discreetly reach the people who can help them. This eliminates the “I didn’t know who to tell” obstacle, as well as overcoming fear of retaliation or retribution.

It’s critical, however, that anonymous reporting systems be appropriately designed and deployed. A static hotline number that is buried in a policy is not likely to help solve the problem. In fact, as The New York Times reported in April 2017, Fox News had a hotline in place, but the individuals who brought sexual harassment allegations against Bill O’Reilly “did not know about the company hotline and had not been told about one, even in sessions about sexual harassment.”

If firms are looking to hotlines to help them comply with the ABA’s recommendation, they should ensure the number is posted in multiple locations — in handbooks, on intranet pages, and on old-fashioned posters. Attorneys and staff should be well informed of hotline availability during training and through periodic reminders.

Hotlines can be a limited solution, however, as Law360 reported on June 4: Anonymous voicemail messages may generate reports too vague to investigate, according to Susan Ritz of Ritz Clark & Ben-Asher LLC. For example, if a tipster reports bad behavior in the accounting department without sharing specific identifying factors, and the accounting department comprises 250 people, it’s a challenge to diagnose and address it.

One way to circumvent the problems with traditional hotlines is with technology. For example, recently developed smartphone apps, such as StopIt and Kendr, allow employees to report claims of harassment to upper management anonymously. The StopIt app was developed in response to an abuse situation in the school system and only provides the option of anonymous whistleblowing reports. On the other hand, Kendr (a company I co-founded) allows employees to choose whether they wish to have their identity known or cloaked, and it also allows employees to communicate in multiple languages. However, in either case, using a mobile app permits the employer to continue to interact with the anonymous reporter to collect additional information and obtain a more complete investigation.

When we make the reporting channel accessible and take away the fears of reporting, we connect the employees who are feeling harassed with the people who can get them help. It’s our professional responsibility to help our clients combat harassment in their workplaces — and our obligation to each other to stop it in ours.

Beth A. Schroeder is a chair of the labor and employment group at Raines Feldman LLP and the co-founder of workplace software product Kendr.