Sexual Harassment in the Legal Profession

Episode Notes

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Lawyer 2 Lawyer – Law News and Legal Topics

Sexual harassment in the Legal Profession

12/04/2017

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Joanna L. Grossman: From everything we know again data, anecdote survey, qualitative interviews, it looks like the problem in law firm is always a little bit worst than it is in most other places.

Kathryn Rubino: There’s going to be a lot of people that we know and respect to have heard of or trust in some way that have acted inappropriately.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from Southern California. I write a legal blog called May it Please the Court.

Bob Ambrogi: And this is Bob Ambrogi coming to you from Massachusetts where I write a blog called LawSites. I also host another Legal Talk Network program called Law Technology Now along with Monica Bay.

J. Craig Williams: And Bob before we introduce today’s topic we would like to take a moment to thank our sponsors Litera and Clio.

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Bob Ambrogi: Okay Craig, from a Hollywood Moguls to Washington politicians, it seems like sexual misconduct and harassment allegations have flooded the news cycle. According to recent article in bigger law firm magazine last year, the Equal Employment Opportunity Commission received nearly 13,000 sexual harassment complaints. Well, approximately 90% of victims chose not to take formal action.

J. Craig Williams: Bob, but the problem is sexual harassment not only lies in Hollywood and on Capitol Hill; allegations exist in the workplace and especially in law firms. The legal website Above the Law host the series titled The Pink Ghetto, which spotlights real life stories from victims of sexual harassment in law firms.

Today on Lawyer 2 Lawyer, we will discuss sexual harassment at law firms. We’re going to take a look at how recent sexual misconduct allegations in the news have impacted policy at law firms, the prevalence of sexual harassment in the legal profession and what needs to change in the workplace society.

Bob Ambrogi: And to help us to do that today Craig, we have two guests. First of all, I would like to welcome to the program Attorney and Professor Joanna L. Grossman, the inaugural Ellen K. Solender Endowed Chair in Women and the Law at SMU Dedman School of Law.

Joanna writes extensively on sex discrimination and workplace equality with the particular focus on issues such as sexual harassment and pregnancy discrimination. Professor Grossman, welcome to Lawyer 2 Lawyer.

Joanna L. Grossman: Oh, I am happy to be here.

J. Craig Williams: And Bob our next guest is Attorney Kathryn Rubino. Kathryn joined the editorial staff at Above the Law back in 2015. In 2013, she started writing a column for Above the Law about her experiences in the legal industry and has authored guest columns at Corporette. Welcome to the show Kathryn Rubino.

Kathryn Rubino: Hi there, how are you?

J. Craig Williams: Great. Well, as everybody knows if you at least watch a news station or turn open a web page, sexual harassment allegations are all over the place Trial by Twitter. People are getting fired left and right. Kathryn what lead to this, how do they get started?

Kathryn Rubino: Well, the allegations that news organizations have been researching, really started with Harvey Weinstein, who was apparently an open secret in Hollywood that he had sexually harassed and assaulted various actresses and other employees or allegedly did that throughout the course of several decades actually.

And from there, there was a Twitter campaign #MeToo where both on Facebook and Twitter, women from around the country started sharing their stories, saying what has happened to them in terms of sexual harassment and sexual assault. And it really took off in a very viral organic way. And I think one of the things that folks found surprising was how many women that they knew had experienced harassments or assault in their lives and it was really a very widespread issue.

J. Craig Williams: Joanna, on the day that we were recording this, just in the news today, we have heard allegations against Matt Lauer, against Garrison Keillor. It seems that this is just going wild in certain industries, especially the entertainment industry. What about the legal profession, how pervasive is sexual harassment at law firms?

(00:05:10)

Joanna L. Grossman: From everything, we know, it’s probably a little bit worse than it is than in an average workplace. Now, Hollywood is not an average workplace. Hollywood has had a long history of sexual misconduct and hiding sexual misconduct. There are other sectors we might pick on, media, it’s a particular kind of a problem.

But if you’re thinking about just average workplaces, different industries, different sectors, and we look at rates of harassment. We find that women generally will report about 4 in 10 of them in the two-year period. We will say they have experienced something that qualifies as harassment.

And in law firms, we will find that number to be a little bit higher; sometimes, as high depending on the study as 60% or 2/3^rd who have either been victimized or been very close to it. So from everything we know again; data, anecdote survey, qualitative interviews, it looks like the problem in law firm is always a little bit worst than it is in most other places.

Bob Ambrogi: And is that just law firms or there’s a kind of the legal profession in general. I mean in legal academia, for example, is this happening there, is it happening at law schools, among students at law schools.

Joanna L. Grossman: I think it’s happening across the legal profession. We certainly have had many different scandals in academia; many of which have been front page news in the last few years. You might see it a little bit last in certain practice settings. Sometimes, the money in law firm and the power allows it to proliferate. You have a rainmaker, for example, who might be the problem but is also too valuable to crack down on.

So the money might change things a little bit in law firm versus say a public interest or a government setting. But yes, from everything we know, it’s across the legal profession, there’s no particular sector that’s immune.

J. Craig Williams: Kathryn, we’ve seen person after person getting fired, let go. Today, Matt Lauer was like he was fired yesterday as we get this on Tuesday. What actually happened in terms of this Trial by Twitter, what happened to due process?

Kathryn Rubino: Well, in terms the Matt Lauer situation specifically, we don’t know a lot of the allegations. NBC has kept a lot of things under wraps but they’ve indicated that they’ve done their own internal investigations in that he violated the terms of his employment.

So in that incidence, I don’t think it’s a fair to just call it a Trial by Twitter, in anyway, although the reaction has certainly become viral in a lot of ways. And I think that that’s partially also because Matt Lauer is a figure that people feel an attachment to. He comes into their home every morning as they watch the news, it’s part of their morning ritual. And so I think that there’s also a feeling of a shock and betrayal although I think that to some extent, we’ve kind of come to a point where we need to realize, we shouldn’t be shocked anymore.

There’s going to be a lot of people that we know and respect to have heard of or trust in some way that have acted inappropriately. And I don’t think that it’s just really Trial by Twitter as these things come to light but it is a recognition that there’s a long history and a lot of people who have been hurt by powerful people and this is finally, we’re talking about it.

Bob Ambrogi: Joanna, is this largely a matter of power, is this about sex or is this about power?

Joanna L. Grossman: There’s no way to really separate them. So it’s certainly a sort of common trope to say that rape is about power, not sex. Sexual harassment is a mix. First of all, sexual harassment occurs in all kind of settings including at the hands of people without power, lodged against people with power.

What interties these recent allegations and recent sandals together is that the people who have been accused are not only in power relative to the other person but they are, in many cases, the very top person in the company or the field. So Roger Ailes at Fox News and Harvey Weinstein at Weinstein Media and we could go down the list. Right, this is not low level managers who are picking out a subordinate. This is the guy, who has the power.

So in these particular allegations that have come up, it seems like power is playing a role, not necessarily in creating the harassment or allowing it to happen in the first place, but in allowing it to continue, in hiding it, in allowing a person to use their power to squelch accusers and to make payments in order to quiet them down.

So I think power in these recent scandals is more of a factor than you see in the sort of average everyday harassment case. But I don’t think there’s a way to separate out, whether it’s about power, about sex, I think it’s about both.

J. Craig Williams: And how does this flow into politics? I mean we have seen the allegations occur in Congress, people are stepping down from committees and being asked to resign, we got candidates running for office have been accused of it, and a president, who has been accused of it. How does all of this factor into — how do we deal with our politicians in this fashion?

(00:10:05)

Joanna L. Grossman: Well, one of the surprising things I think in some of the political allegations is how ill-equipped political bodies are to deal with this. So for example, it turned out that after some allegations were made in the Texas legislature that they don’t even have a policy. There’s no Human Resources Department. There’s not even a formal way in which women could complain about harassment.

So I think that’s one of the surprising pieces, but in some ways politics is like Hollywood, right. It’s a lot of people, with a lot of power, a lot of digression, relatively few constraints.

People who work in non-traditional sort of work environments, they’re traveling a lot, they’re moving around a lot, they don’t have a typical chain of command. So, it doesn’t surprise me that it’s rampant on politics. I think the responses we have are troubling, they tend to be political rather than really focusing on the issue and focusing on the harm, but again, it doesn’t surprise me, but what we do about it is little bit surprising.

Bob Ambrogi: Well, that sounds a lot like law firms as well. I mean Kathryn, I know that you and Staci Zaretsky and others at Above the Law have — we alluded to earlier documenting some of the stories of women who have been victims of harassment at law firms. What do you see, what are you learning from the stories that you are hearing and reporting on?

Kathryn Rubino: I definitely think that a lot of these themes about power and people who are quiet literally consider themselves above the law is some of the themes that we are seeing over and over, I think that particularly at large law firms you have people who are working very long hours and often time there has been said that there is a culture of happy hour kind of culture in a lot of law firms, especially big law ones in Manhattan. And that all kind of contributes to situations where people feel like they are being put in vulnerable positions when it’s kind of a requirement for your job to attend happy hours and partners maybe act inappropriately at those happy hours, you’re putting yourself in a position that you don’t want to necessarily be in. It’s not a good thing to be put in that position where you know that somebody is able to sort of make these harassing comments or even to know a lot of times something worse.

And some of the stories that we get send to us at Above the Law are really shocking, just kind of, the worst kind of situations you can imagine where partners would touch, inappropriately physically touch associates or paralegals, different stories like that. And even publicly Liz Warren talked about as a law professor, older colleague kissing her around her desk. I mean just the most stereo typical awful situation you can imagine, and it’s just we are — women are taught that that is part of what happens at firms and for a long time the only way to protect yourself was to share your stories with other women and to let them know just to be careful that this person was out there, don’t be alone with such and such a partner after hours, you don’t know what will happen.

Certainly that’s something that I heard when I was working not as an attorney but at the law firm. I was told, oh, make sure just be careful, if you work with this person or you work with that person, nothing more than that, but it’s enough to kind of create what has been referred to as the whisper network as a way that kind of protect yourself when there’s no real recourse for women.

J. Craig Williams: How do women effectively deal with like for example the situation in Matt Lauer’s where the women that were his co-hosts, were basically on the air saying, we love Matt Lauer, and he has been great to us and we are terribly sorry, we believed the woman that is in the situation. But how do you handle the situation where you have some respect or you have affection for the man that is involved with, who has behaved very badly, what are the circumstances of that, how do we get through this, what are men going to do now to resolve these issues?

Kathryn Rubino: I mean, I think that is sucks, right? I mean I think that what we are learning is you absolutely know somebody you like and trust and have worked with and has been good to you in your job that has done something inappropriate, made some inappropriate comment, touched someone, made a pass at someone, inevitably I think the majority of people in the workplace will realize that somebody that they like or trusted will have done something inappropriate.

And we have to kind of work together to figure out what happens next. There is no blueprint, this hasn’t really happened — certainly not on this scale before, and there has to be some recognition of the kinds of behavior that is happening. The appropriateness of it all and we need to — these kind of conversations where we actually discuss what’s happened and admit kind of the severity of the problem, I think are an important step in the process.

Joanna L. Grossman: And if I could just pick up where Kathryn left off talking about, we have no blueprint. Part of the reason we have no blueprint is not because the harassment is new, we know that this has been happening, what’s new is that people are getting fired for it and that women are complaining.

And so, we haven’t had a lot of situations where you’ve had to sit by and watch someone you like and respect to be fired. It’s been the case that you’ve had to sit and watch someone keep their job despite engaging in harassment. So that whole scenario is really something new, and I don’t know where it’s going to end up, but this is something that we’re really dealing with for the first time.

Bob Ambrogi: Joanna, I want to pick up on that point a second but we need to take a short break. So stay with us, we’re going to be back in just a moment to talk more about sexual harassment at law firms and in the business world more general.

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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer. This is Bob Ambrogi and joining us today is Professor Joanna Grossman, the inaugural Ellen K. Solender Endowed Chair in Women and the Law at SMU Dedman School of Law, and also Attorney Kathryn Rubino, editor for Above the Law and columnist for Corporette.

And Joanna, I wanted to ask — I want to follow up on what you were just talking about but you and Deborah Rhode recently had an article in the Harvard Business Review on understanding legal options if you’ve been sexually harassed, and you are just making the point that we are seeing things happen now I guess, but one of the points you make in that article that is kind of surprised me is that you seem to suggest that in the majority of the cases, women who complain about sexual harassment should be prepared for the fact that there could repercussions for them as well. Could you explain that a little bit?

Joanna L. Grossman: Sure, so retaliation is the problem, right? And we know a lot of things about retaliation in practice. So one is people who complain about harassment or discrimination at work, a majority of them will experience some kind of retaliation. That could be everything from getting fired, getting demoted, getting ostracized, put in adverse working conditions, having your shift changed, and we have pretty good studies looking at how common retaliation is.

Now retaliation is independently a violation of anti-discrimination laws and there are lots of cases that by the time they get to the court, don’t have anything left other than a retaliation claim. So, it’s not that employers are never held accountable for it, but it’s not sufficient because it continues to happen.

So when women or any kind of victim right is deciding, is it worth it for me to file a complaint, right. My employer has set up this procedure. I know that I am supposed to use it. Is it worth it, right? Retaliation or the prospect of retaliation is certainly one of the things that we know victims do in fact consider, that’s part of their decision making process and we also know that mostly they are weighing it correctly when they decide not to complain. If you look at people who do complain at how their lives turn out — how their working lives turn out, many of them are worse off in some tangible way down the road whether it would be economic, career, emotionally, family that their lives really get a bit worse from getting put through the ringer of complaining.

So, it’s sort of hard to tell victims on the one hand, of course you should complain that’s the only way to make it stop, on the other hand, the reality is, your life might actually get worse rather than better.

J. Craig Williams: What is the process after a complaint is filed? What is, legally supposed to happen as investigations are made and allegations are evaluated and decisions about people’s careers are made, how does it supposed to work?

Joanna L. Grossman: Well, the law is set up that, sort of in broad brush, harassment is a form of intentional discrimination. So, sexual harassment violates Title VII or state anti-discrimination laws, but the way the rules of employer liability have been crafted, they shift everything internally.

(00:20:07)

So, employers are supposed to create their own internal grievance procedures. Both include policies, explaining what’s prohibited and geared towards prevention, but the key part of those policies is supposed to set up an internal grievance procedure.

So in an ideal world what would happen is harassment of some kind would occur, the victim would file an internal complaint with Human Resources or whoever is designated. That person or that committee is supposed to do an investigation. They are supposed to make findings, right as if they were sort of a mini court. They are supposed to decide, we have evidence or we have what he said and what she said, but we think one of them is more credible than the other. They are supposed to actually make factual determinations, and then based on those determinations they either take action, because they think harassment occurred and something needs to be done or they do not think harassment occurred and they don’t take it.

The woman who is alleging harassment she can’t even get to court until she has gone through this process and then filed an administrative complaint with the EEOC and only then could she end up potentially filing a lawsuit.

So, a lot of the pressure is on that internal investigation. Unfortunately, what we know about those investigations is they don’t work very well. They tend to be biased for obvious reasons. The employer has a pretty good incentive not to find harassment and not a very strong one to find it. They tend not to be very thorough. They tend to be done by people who are not trained in investigations. They tend to be done by people who are resistant to make factual determinations and punishment doesn’t tend to correspond very well. Sometimes it’s too harsh and sometimes it not harsh enough, but it doesn’t tend to correspond very well.

And then at the end of the day, the courts don’t hold the employers’ feet to the fire. If you do any kind of investigation and you have any kind of a process then you are deemed a good employer and you will have liability to minimize or avoid it altogether. So, there is no real incentive for employers to get it right and what we know from every study that’s ever been done is mostly they don’t.

J. Craig Williams: It’s just sounds like there is really not any hope for a resolution. What’s the long term prognosis for this situation we find ourselves in. I mean we have obviously a due process issue, we have got rampant investigations that aren’t really legitimate. Women who are facing worst situations when they do complain and this does not land itself to a very favorable long term resolution or am I just seeing the glass as half empty?

Joanna L. Grossman: Well I tend to be a bit of a buzz kill on these issues, but I do think that this recent spate of allegations and firings has brought this issue to the forefront in a way that is not going to immediately create change but at least sets the groundwork for change.

So having people talk about their own stories, having people suffer consequences and see people suffer consequences, those are important parts of making some progress on this. But at the end of the day, the law is pretty good, it’s just not going to do the trick. The law is there is a sort of back stop but if you want institutions to promote cultures that are nondiscriminatory that don’t have rampant harassment, you need those institutions to take it on, you need more self-auditing, you need employers whether it be a state house or Hollywood company or a media company, a law firm, whoever it is, you need them to take ownership of this and say, I don’t want to be an employer where women are on Facebook telling about their hundreds of stories. I don’t want to be a company that pays off victims in order to keep valuable men in place.

And I think some of these stories that have come out have changed the game on that issue a little bit. I do think there is more accountability. I do think there is more reputational harm for employers that are looking the other way, but the pressure is really on them now to take the ball and to say what is my work place like, what am I doing to stop this from happening, and what am I doing to react appropriately? And if they don’t that, it could be that market forces are the best punishment for them. I don’t know if that’s enough, but I think that’s one of the things that’s going on here.

J. Craig Williams: Well, thank you for that. And it looks like we have just about reached the end of our program. So, at this point, we would like to invite our guests to wrap up and share their final thoughts as well as their contact information so our listeners can reach out to you if they would like to get a hold of you. So, Kathryn, let’s start with you.

Kathryn Rubino: Thank you so much for having me on the program today. And I think Professor Grossman was quite powerful on, the sort of utility that a lot of women who have faced sexual harassment and sexual assault have faced in the workplace, but I do think that now is a unique time and I would just encourage to the extent that it’s a safe and powerful thing for victims to do is to tell their stories and to, try as much as possible to hold people accountable. And, you can reach me at Kathryn, [email protected] or on Twitter, @kathryn1.

J. Craig Williams: Great. Thank you very much. And, Professor Grossman.

Joanna L. Grossman: I think it is a really interesting time, which is not always a good word; interesting. But I think we do have to really seize the opportunity. Kathryn invites victims to seize the opportunity and really make sure their stories are heard and make sure that they hold people accountable. And I certainly second that and I also encourage everyone else to, we all have skin in this game and everybody has to be a part of this. I don’t think anybody is really enjoying this time. I don’t think men are enjoying this time worrying about whether they are going to be complained about next and I don’t think employers are enjoying the insecurity.

So, that’s a sign that we need to do something different. We can’t just wake up tomorrow and do the same thing. And people have called this a reckoning and I think there is that potential. But it’s going to be a question of what we do with it. Is it going to be a wakeup call that we ignore and move on with our lives, or something that really changes the way we do business? And I hope it’s the latter.

I can be reached by email at [email protected] or on Twitter @joannagrossan, or if you just Google me, you will find me.

J. Craig Williams: Great. Well, thank you very much. That brings us to the end of our show and if you’d like what you want to hear today, please rate us in Apple Podcasts. This is Craig Williams with my co-host Bob Ambrogi. Thanks for listening. Join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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