Paper written by Stacey Shortall [1], 18 September 2018.
This is a paper I submitted for the NZ Lawyer 2018 Women in Law Summit, it reflects my views on the opportunity we have to rewrite the playbook in a way the ensures the future of work is safe for women.
Setting the stage:
On 15 October 2017, actress Alyssa Milano started #MeToo on Twitter – encouraging use of the phrase as part of an awareness campaign around sexual harassment and assault. Women suddenly began using social media to go public with accusations, bypassing the traditional gatekeepers who might have buried their stories. By Twitter’s own count, more than half a million #MeToo tweets were sent by the afternoon of 16 October 2017. In the first 24 hours, the #MeToo hashtag was reportedly used by more than 4.7 million people in 12 million posts on Facebook. By early November 2017, #MeToo had been retweeted 23 million times from 85 different countries.
What followed became “one of the highest-velocity shifts in our culture since the 1960s” according to Time Magazine, which declared the silence-breakers behind the #MeToo “reckoning” to be its 2017 Person of the Year. Use of the hashtag opened a floodgate where women from across the globe came forward to lift the veil of silence. Personal stories of sexual harassment, including in the workplace, were widely shared. Incidents from years – even decades – ago suddenly came back to life. Most importantly, women were believed.
As the global #MeToo movement put workplace sexual harassment in the international spotlight, the New Zealand legal profession found itself at the forefront of criticism here.
In the wake of sexual harassment allegations involving Russell McVeagh, the Workplace Environment Survey of New Zealand’s legal profession released on 30 May 2018 (the NZ Legal Profession Survey) revealed that many female lawyers in our country have been sexual harassed and/or bullied at work. Indeed 31% of female respondents identified themselves as having been sexually harassed. 60% of female lawyer respondents said they had been bullied during their working life. Of lawyers who had been sexually harassed at some point in their career, just 12% had formally reported or made a complaint about the harassment.
We are not alone.
The Law Council of Australia’s National Attrition and Re-Engagement Study Report published in 2014 identified that half of all women lawyers reported experiencing discrimination due to their gender and that one in four women reported experiencing sexual harassment at their workplace. It showed that the situation was even worse for women at the bar.
Media stories from the United Kingdom in February of this year reported that a (relatively small) survey had found that two thirds of UK women lawyers had experienced sexual harassment at work. An October 2017 NBC News/Wall Street Journal poll reported that 48% of women working in the United States say they have personally experienced an unwelcome sexual advance or verbal or physical harassment at work.
Nor is the issue new.
I recall watching Anita Hill’s treatment in 1991. It was my first year at law school. I watched clips on television of Hill testifying before the United States Senate Judiciary Committee that Clarence Thomas – then a nominee to the US Supreme Court – had sexually harassed her when she worked for him. The way in which she was questioned is seared in my memory. Senators on an all-male committee subjected Hill to a humiliating process that, while I may not have known to use the word then, was clearly bullying. I understand that another former employee was also waiting in the wings to describe how Thomas had sexually harassed her too. But she was never called to testify.
Instead Hill withstood the committee’s questioning alone. After the hearings, Thomas was appointed to the Supreme Court. Opposition to Hill meanwhile made her life at the University of Oklahoma so difficult that she had to leave her tenured position.
27 years later, let me come to today.
Admitting I was wrong
I facilitated this conference a year ago off the back of having written a paper in 2016 sharing my thoughts on what causes the high attrition rate of women from New Zealand’s large law firms (even though there is a strong pipeline). My focus at that time had been trying to dispel the belief that women lawyers had to make significant trade-offs to ensure career success. In my 2016 paper, I acknowledged that some female lawyers leave large firms because such firms’ cultures are intolerable for women, but I believed most large firms were committed to change. Indeed I wrote:
For those of us who have practised for several decades in big firms, we have seen the change. The sexist language and behaviours that our predecessors (and some of us) experienced are nowhere near as rampant (or tolerated) as they once were.
Indeed entering our law firm corridors today is a generation of New Zealand women who have grown up expecting equal opportunity in the workplace. They have never experienced the overt gender discrimination that some of us and our predecessors did. They have not studied or worked in environments where they have been the only women (or one of very few women) in the room. They have no expectation that their gender will – or even could – compromise their big firm career.
Plainly I was wrong.
Shielded from the recent experiences that I now understand many other female New Zealand lawyers have endured – in large part, I suspect, by working for much of my career offshore and then returning to a firm that does not tolerate sexual harassment – I had no idea that such behaviour continued so systemically in our profession. But perhaps I should have.
Having spent over 20 years in large law firms, both in New Zealand and New York, I know they are demanding, fast-paced, all-consuming, bottom-line-driven, workplaces. I know that competition between assertive, ambitious and decisive people can run high, and that supervision may be more diluted. I know that, while sexism is not exclusive to any one industry, it is more prevalent in historically male-dominated spheres like law. I also know that many law firms tend to be more favourable to men than women because they reflect the values, habits and preferences of the men who built them.
I know that – like other corporates and institutions – law firms have struggled to come up with effective and consistent solutions to gender inequality. While I suspect they would all call gender diversity an important priority, of the country’s largest firms, few have women making up more than 25% of their partnership. This means that the pipeline of 50%-plus female law graduates and entry-level law firm hires for decades is simply not resulting in more female partners.[1]
I know, too, that gender-biased attitudes and language continue. As I have seen reported in offshore press, in environments where winning can be the goal, winning against – and with – women may even be part of the game.
If I am brutally honest, I was not shocked to read online and in the media about female lawyers enduring experiences of sexist comments, stories and jokes. Accounts of female lawyers needing to rebuff sexual advances or unwanted attempts to touch them were not inconceivable to me. Nor was some of the behaviour described in Dame Margaret Bazley’s Independent Review of Russell McVeagh (the Bazley Report). Likewise I was not surprised by the reasons reported for why so few women came forward to lay complaints – often a mix of fear of not getting another job, a small profession, victim blaming, power imbalance and because people told them it was better not to.
I just believed that such stories and rationales were historic – not current.
Making it right
Being wrong in 2016 does not sit easily with me.
While I cannot change that, I can (and will) do everything possible to make my words right in 2018 – to seek to ensure that all lawyers in our profession are respected, protected and safe. Accordingly, in this paper I seek to contribute meaningful, practical solutions to the problems of sexual harassment and bullying in the New Zealand legal profession, with a particular focus on the environment I know – big law firms.
My suggested solutions are not an exhaustive list. I do not hold any sort of monopoly on good ideas and would encourage all of us to share whatever solutions we may have. Some of you may well disagree with mine, and I may disagree with yours. But with the legal profession looking for a roadmap, before any of us stomp off feeling offended, we need to pool as many possible solutions as we can.
Lots of good ideas are already being shared. In particular, I acknowledge the significant contribution contained in the Bazley Report. I also look forward to seeing what the Law Society’s regulatory working group, led by Dame Silvia Cartwright, and the Law Society’s “culture” taskforce, produces.
Many lawyers – female and male – enter our profession to combat inequality and injustice; not to perpetrate it. So I certainly do not consider this to be a fight between women and men. Rather it is a fight over whether a small subgroup of predators should be allowed to interfere with a lawyer’s ability to do what they studied for – work.
It is not an unreasonable assumption that work should be about work. While women are not monolithic (there are different issues and challenges that we face), there are common nuances that many women need to navigate in furthering their legal careers – pregnancy, childcare, household management, aging parents, to give just a few examples – without adding trying to escape our workplace unscathed by sexual harassment or bullying.
Of course some sexual harassment and bullying victims are men.[2] Women may not only be victims of sexual harassment and bullying, but may engage in it themselves too. However that appears less prevalent, which causes me to focus more here on the sexual harassment and bullying of female lawyers by men.
I am mindful that my proposed solutions might be discounted because they could be perceived as me simply looking out for other women. Perhaps I am. But so should we all. And many of us do.
Over my career, I have certainly worked with male lawyers who are advocates for women in our profession. I have seen male allies play an important part in fighting sexual harassment and bullying. In fact, I believe that most male lawyers wish to help more women advance.[3]
At the risk of backlash, I am likewise mindful that some female lawyers may have found senior women to be competitive, unreceptive to offering help or even obstructive. While women may be more likely to confide in another woman – disappointingly – it does not always follow that senior women in our profession are less likely to look the other way.
Proposing some solutions
In any event, let me propose some solutions.
In my view, there are four key planks to preventing, and dealing with, sexual harassment and bullying in law firms:
Strong and clear policies.
An effective complaints process that ensures a prompt investigation and appropriate response to any complaint.
A firm-wide regular training programme.
A culture of not condoning sexual harassment or bullying and taking leadership action consistent with that culture.
Strong and clear policies
If they have not already done so, law firms around New Zealand are overhauling policies relating to sexual harassment and bullying.
To state the obvious, lawyers, staff, clients, suppliers and vendors cannot know that a firm does not tolerate sexual harassment and bullying unless the firm says so (and acts accordingly). Nor will people be sure what to do if they experience or witness sexual harassment or bullying unless the firm tells them.
In order to develop comprehensive and effective policies, the right people at the highest level must be involved. In the law firm setting, that is typically the chair or managing partner of the firm.
The more things are explicit the better. I suspect many harassers do not think of themselves that way and instead may regard – at least some of – their own behaviour as playful, harmless or otherwise acceptable. So, not only must policies include a general definition of sexual harassment and bullying, but they should also give some examples that demonstrate what exactly constitutes such conduct.
In the wake of the #MeToo movement, the American Bar Association (ABA) released a new manual outlining recommendations for the legal industry in the United States in tackling workplace sexual harassment (the ABA Manual). This new version, prefaced by Anita Hill, had been in the works for two years but provides much more specific policy advice than previous versions and includes sample policies that legal organisations can use in drafting their own policies to prohibit sexual harassment. The ABA Manual recommends that firms draft policies with clear definitions of sexual harassment that spell out specific behaviours. These could include asking questions about sexual orientation and making verbal comments about attractiveness.
Surprising as it sounds, some people may actually need a heads-up on what is inappropriate at work. To give a simple example, there is a big difference between saying “I like that skirt” to “You look hot in that skirt.”
This is not to suggest that policy examples should become construed as an exhaustive list – which also can be made explicit. However, I believe clear guidelines can help remove ambiguity and seek to protect everyone, while also ensuring that women are not unnecessarily penalised if men become wary of working with them out of fear of being accused of some kind of misconduct – which ultimately could affect the advancement of women in our profession.
I also accept that people have different senses of humour. And I acknowledge that some people might be concerned that the pendulum could swing too far such that workplace “banter” in law firms disappears. But there is a time and place for everything. The workplace simply is never the place for crude or unpleasant jokes. They do not comprise “banter.” Rather they are offensive and unnecessary. Polices can make that point explicit.
It should also go without saying that sexual harassment and bullying can take place in workplace-related settings that are not the office – such as taxis, restaurants and bars. Accordingly effective policies must plainly state that they apply irrespective of where the conduct occurs. The ABA likewise urges organisations to have policies expressly apply to all levels of the organisation and to non-employees such as clients, suppliers and vendors.
For the sake of completeness, polices also need to make explicit the serious disciplinary action that may be taken in the event of a breach.
An effective complaints process
The true lynchpins to preventing sexual harassment and bullying are, however, how law firm leaders act and what firms actually do with complaints.
Undoubtedly it is essential that firm leaders ensure a prompt, thorough and fair review of each complaint. All sexual harassment or bullying complaints, no matter when or against whom they are raised, should be appropriately investigated and the complainant then assured this has happened.
Fair procedures that uncover the truth are needed. I understand that careers and reputations are on the line. Firms should follow the same procedures used when a worker is accused of any type of serious misconduct.
Above all else, the policies must be followed scrupulously. There may be times for a firm when it will feel more comfortable to go a different way or to handle the situation more informally. Clearly that is fraught with danger. The firm must consider itself bound by the applicable policy in every case and as to everyone (regardless of position). No exceptions.
As the NZ Legal Profession Survey shows, the overwhelming majority of women lawyers in New Zealand who experience sexual harassment do not report it. The survey found that just 12% of the lawyers who had been sexually harassed formally reported or made a complaint about the harassment. Accordingly, no firm can assume that because people do not report sexual harassment, they do not have an issue. On the contrary, if people do not feel comfortable reporting concerns, that is a problem in itself.
I understand why women have been reluctant to report. The small size of our profession makes it especially hard for women to come forward. The most common reason for not reporting given in the NZ Legal Profession Survey was fear of consequences (65%), with 49% saying they were concerned about the impact reporting would have on their career. Women know there is an informal grapevine to some degree in any community.
Moreover, as lawyers, we work in a relatively conservative industry. We are trained to seek approval, follow the hierarchy and defer to senior lawyers – even group emails are often addressed to the most senior recipient. While sexual harassment and bullying does happen between not only powerful men and their subordinates, the NZ Legal Profession Survey showed that the harasser was most likely to be the target’s manager, supervisor, partner or director. Such power imbalances can make it particularly difficult to report.
For all these reasons, it is crucial to establish a multichannel complaint process. Because some people might fear retaliation, particularly when the alleged perpetrator is a powerful person in the firm, having a mechanism that allows people to make anonymous complaints of sexual harassment or bullying can also be useful (even if that does create limitations around what responsive action the firm can take). The ABA similarly advises employers to provide multiple ways to report violations, including methods that do not involve any accused party and at least one anonymous method (such as a hotline).
Anything that any partner becomes aware of should also be assumed to put the firm on notice of alleged sexual harassment or bullying. Partners must report to the firm any sexual harassment or bullying that they witness or about which they are told. I suspect this will increase the number of reported complaints. In the NZ Legal Profession Survey, more than one quarter of lawyers said they had witnessed sexual harassment in a legal workplace.
Finally, people at the highest levels must be involved in enforcing the expected behaviour through the complaints process. A policy is just a piece of paper unless it is given teeth by someone who can bite.
A firm-wide regular training programme
All this brings me to the third plank – regular training across the firm.
Training centred on eliminating unwelcome or offensive behaviour has been around for years. Results from the NZ Legal Profession Survey would indicate that old training solutions have not worked. But there are some good new alternatives.
Workplace “civility training” that focuses on promoting respect and civility in the workplace generally may offer some new solutions to an age-old problem. “Professional etiquette” training that motivates people to correct poor habits, like vulgar jokes, can likewise be useful.
“Bystander training” – that empowers co-workers and gives them the tools to intervene if they witness harassing or bullying behaviour – can also be effective. University of Wisconsin Professor Shannon Rawski has been quoted as saying that training should focus on empowering the bystander to address conduct, thereby equipping “everyone in the workplace to stop harassment, instead of offering people two roles no one wants: harasser or victim.” In other words, everyone can be encouraged to speak up if she or he witnesses sexual harassment or bullying.
I am not talking about 30 minute “check the box” training at annual retreats either. To be truly beneficial, firm-wide training needs to be meaningful, regular and compulsory. It also must include real-life examples for participants to work through together and discuss potential responses.
Strong culture and leadership
Policies, processes and training demonstrate a commitment to ending sexual harassment and bullying, but they will not deliver the required outcomes on their own. Getting male and female lawyers at all levels of the firm to own this issue together is the only pathway to making real change.
As reflected in the Bazley report, firms need to step beyond sexual harassment and bullying to address culture as a whole. For obvious reasons, any culture that can stifle and stymie the professional advancement of all lawyers should be intolerable. Regardless of whether something is technically sexual harassment or bullying, no workplace should accept behaviour that is offensive or inappropriate.
Indeed, while we face this watershed moment for the legal profession in New Zealand, we must raise our standards overall to develop a strong culture of professionalism and respect where sexual harassment and bullying is not welcomed or tolerated. The law firms committed to superior performance and staff satisfaction will do so.
Which brings me to law firm leadership.
Although I admit to having given it a go, lecturing people not to harass or bully does not change hearts and minds. Rather, the most effective way to create a sexual harassment and bully-free workplace is to have senior partners who lead by example. This is particularly important because other partners, staff, and clients look towards senior partners to decipher what a firm really stands for – and does not.
If everyone believes – rightly or wrongly – that senior partners do not tolerate sexual harassment and/or bullying, they are less likely to engage in or allow unprofessional conduct in the workplace.
Of course, the converse also is true.
With the right tone set from the top, all partners can then lead. Each of us who are law firm partners must make ourselves aware of even potentially minor issues in our firms and deal with them. We must encourage positive bystander intervention, where even awkward or ambiguous comments that may not have been overtly sexual are followed up on to confirm lines were not crossed. Until staff believe that partners have bought into the process, no amount of policies, processes or training on avoiding sexual harassment and bullying will work.
The example set by firm leadership can make a real difference, not just in modelling behaviours and attitudes that value women, but in ensuring that real actions are taken by all partners to achieve it. A zero tolerance policy on paper alone is a world away from a partnership that values diversity in the firm’s everyday operations and shows that value in practice.
Perhaps unsurprisingly then, I believe promoting the inclusion of women needs to be an issue that galvanises every partnership as part of efforts to prevent sexual harassment and bullying in the New Zealand legal profession. Partners should be held accountable for performance against gender-diversity metrics and could be incentivised through financial bonuses.
I believe it is important to mandate diversity targets – just like for new client goals or revenue targets. Unless things are measured and part of compensation, at least in my experience, they seldom happen in a law firm environment.[4] According to a 2017 McKinsey & Company report into “Women in [US] law firms,” law firms have many of the right policies and programmes in place to improve gender diversity but more can be done to translate stated commitments into measurable outcomes.[5]
Drawing the curtains
So those are my thoughts on proposed solutions.
I know that prevention ultimately requires changes in attitude and conduct. Indeed, I suspect the heightened awareness around sexual harassment and bullying already is improving behaviour. Surely the NZ Legal Profession Survey has caused at least some lawyers in our country to think again about their bad behaviour towards others. Things people may have even rationalised at the time as being “all in good fun” now, in retrospect, should now feel crude and disgusting (which, of course, they always were).
What is and is not appropriate conduct within the workplace is currently being redefined. The standards have changed fundamentally. And they are being applied retroactively.
While some firms clearly have work to do, I believe that lawyers have a good perspective on what is needed to eliminate sexual harassment and bullying from our workplaces. Members of our profession frequently advise victims of sexual harassment or bullying and their employers. Especially given the experience in our ranks, the legal profession has an opportunity to move beyond the forefront of criticism to lead the charge in combating sexual harassment and bullying in New Zealand.
Not only is ending sexual harassment and bullying better for women, but it is better for men. For so long as the onus remains on women to watch – even at work – what we wear, what we say, where we go and/or who we go with, everyone is losing. A profession in which sexual harassment and bullying is prevalent can be one that shames men who refuse to participate. These men, like mistreated women, can face difficult choices about whether and how to intervene without threatening their own careers.
The legal work environment in New Zealand now is much different than it was a year ago. As the rules of the new legal profession in New Zealand are being written at this very moment, we have a unique opportunity to write the playbook in a way that ensures the future of work is safe for women.
I look forward to the new era of workplace respect and protection of female lawyers being forged by our profession such that real progress can be celebrated at this conference in 2019. Until then, I hope you will join me in offering your suggestions on how we can do – much – better.
References:
While I am a partner at the MinterEllisonRuddWatts law firm, this article reflects my personal views.
I am aware of the assumption that women are making headway in our large law firms and it therefore is only a matter of time before equality occurs organically. While beyond the scope of this paper, as I have stated previously elsewhere, I disagree. The assumption frankly ignores the glacial pace at which market forces are working. I do not believe the problem will self-correct without deliberate, targeted action. This is not to say that large New Zealand law firms have done nothing. For many years now, most firms have expressed a strong commitment to equality and the inclusion of women. There have been many strategies directed at recruiting and retaining female lawyers including diversity committees, affiliation networks and part-time models. However these efforts appear not to be greatly increasing the number of women in partnership or other leadership roles, and a large percentage of women continue not to advance at large law firms. My 2016 paper contains suggested measures on how to reverse this trend.
I am mindful that some transgender, gender-neutral, bigender and gender fluid lawyers may be victims too. Nothing in this paper is intended to limit – or fail to acknowledge – the range of people who can be targeted by sexual harassment or bullying.
Sometimes they just need some practical suggestions – such as not agreeing to speak on a panel unless a female panellist also is included – on how they can help.
I suspect that many law firms lack the gender-equality targets and senior-leadership accountability that would enable the tracking needed to ensure real progress. For example, while firms might track gender diversity in partnership elections, I anticipate that few set targets.
One way to do this might involve adoption of something like the “Mansfield Rule” which is used in the United States to boost diversity in law firm leadership ranks. Named after Arabella Mansfield, the first woman admitted to practice law in the United States, the Rule requires that women and minorities comprise at least 30% of a law firm’s candidate pool for leadership and governance roles, equity partner promotions and lateral hires. The Rule was inspired by the NFL’s “Rooney Rule”, which requires every NFL team to interview at least one minority candidate for head coach vacancies. It is one of the winning ideas that came out of the inaugural Women in Law Hackathon, a six-month-long competition in 2016 that brought together 54 partners from law firms across the United States to tackle the problem of gender imbalance in law firm leadership.