Statement of Bob Carlson, President, American Bar Association 

Industry Leaders Roundtable Discussion on Harassment Prevention
March 20, 2019

Sexual harassment and discrimination

• The American Bar Association has a long history in speaking out against sexual harassment and discrimination.
• In February 1992, the ABA's House of Delegates adopted a Resolution recognizing that sexual harassment "is a serious problem in all types of workplace settings, including the legal profession; and constitutes a discriminatory and unprofessional practice that must not be tolerated in any work environment."
• There are women lawyers in every type of job for which a law degree is required. But while women have progressed in the profession, sexual harassment persists in all practice settings. 
• It is not enough simply to be aware of the problem. Individuals and legal employers need to know about and implement effective policies and practices that can help eliminate it.
• The American Bar Association is in a unique position to contribute meaningful solutions to the problem of sexual harassment.
• Lawyers have a special perspective on what is needed to eliminate sexual harassment from the workplace.
• Lawyers are responsible for providing legal counsel and advice to both victims of harassment and employers.
• Lawyers understand that sexual harassment has an insidious impact on individual victims and on workplace culture, thereby affecting many employees even if they were not direct victims, and negatively affecting the employer who tolerates sexual harassment.
• Lawyers are most often responsible for developing preventive policies and practices designed to prevent sexual harassment.

Resolution 302

• In February 2018, the ABA's House of Delegates passed Resolution 302, which urges all employers, and specifically all employers in the legal profession, to prohibit, prevent and promptly redress sexual harassment and retaliation claims, including adopting measures to ensure that the heads of law firms be informed of financial settlements to resolve claims.
• Some important points from the Resolution:
  • The dissemination of an employer's policy concerning sexual harassment is a core principle. Individual employees cannot know that an employer does not tolerate sexual harassment unless the employer says so.
  • The right people at the highest level should be involved in the discussion about developing a policy against sexual harassment, typically the chair or managing partner of the firm. The key is to empower a group within the firm that has both the authority and the expertise to develop a policy that is consistent with the law and with the firm's values and culture.
  • To ensure that all employees understand the importance of the policy, it should be announced by the highest level of management.
  • People at the highest levels of the firm must enforce the policy. Also, the policy must apply to all conduct at all levels.
  • It is important to provide safe ways for victims to report violations of the policy and to ensure that process is known by employees. A recent survey found that the legal profession was one of the five fields with the highest reports of sexual harassment. Even so, the majority of women who experience sexual harassment do not report it. Many women did not report harassment against themselves or others because of fear of retaliation by the harasser or organization.
• In August 2018, the ABA House of Delegates adopted Resolution 300, which urges legal employers not to require mandatory arbitration of claims of sexual harassment and asks all employers in the legal profession to be leaders in eliminating mandatory arbitration in claims of sexual harassment.

Harassment in the Legal Profession Research

• In 2018, the ABA and American Lawyer conducted a joint survey of the nation's 350 largest firms.
• It found that:
  • 49% of women reported receiving unwanted sexual contact vs. 6% of men
  • 74% of women reported having experienced demeaning communications vs. 8% of men
  • 28% of women said they avoided reporting sexual harassment vs. 1% of men
• Focus groups held in seven cities in 2017-18 discussed what women disliked about practicing law. Both women who are still practicing and those who are no longer practicing cited sexual harassment, along with paternalism, tokenism, lack of face time with clients, a competitive culture that interferes with teamwork and getting credit for work done as the top things they disliked about practicing law.
• "You Can't Change What You Can't See" is a 2018 national study conducted by law professor Joan Williams of the Center for WorkLife Law at University of California Hastings College of Law and jointly co-sponsored by the American Bar Association Commission on Women in the Profession and the Minority Corporate Counsel Association.
• This report sheds light on the dynamics that often keep women and people of color from achieving success in the legal profession by providing fresh statistics on how a much-discussed problem manifests in legal offices.
• It found:
  • One quarter of women - (26% of white women, 24.8% of women of color) - reported unwelcome sexual harassment at work, including unwanted sexual comments, physical contact or romantic advances, compared to white men (6.9%) and men of color (10.8%).
  • Sexist comments, stories and jokes appear to be widespread in the legal field, with more than 70% of all respondents reporting encountering such remarks.
  • The report recommends that legal employers use toolkits designed to stop employment practices. These strategies provide incremental steps that produce measurable change in behaviors and outcomes.

• Other past surveys:
  • Up to 50 percent of women lawyers report experiencing sexual harassment in their present or previous jobs, including sexual propositions, lewd comments and physical groping. (Source: Report by Women in Law Committee of the State Bar of California in 2013.)
  • Nearly three-quarters of women lawyers believe harassment is a problem in their workplace. (Source: 2002 study, "Sex Based Harassment: Workplace Policies for the Legal Profession," ABA Commission on Women in the Profession.)
  • Implicit bias plays a large part in workplace discrimination, including in workplace sex-based harassment, as such acts may not be the result of conscious or reasoned decision-making. (Source: 2015 article by T. E. Page & A. Pina, "Moral Disengagement as a Self-Regulatory Process in Sexual Harassment Perpetration at Work: A Preliminary Conceptualization.")
  • 85 percent of women attorneys surveyed have experienced a subtle gender bias within the profession. Most women lawyers agreed that their male peers do not accept them as equals. (Source: Report by Women in Law Committee of the State Bar of California in 2013.)
  • Implicit biases not only exist, but can be exacerbated in stressful workplace environments like those found in the legal profession. In situations of stress and cognitive overload (i.e., a typical day for many lawyers), employees and managers are more likely to rely on automatic shortcuts to guide their behaviors, resulting in more instances where our implicit biases can impact interactions. (Source: 2012 study from National Center for State Courts, "Strategies to Reduce the Influence of Implicit Bias"). These facts are critical because implicit bias plays a large part in workplace sex-based harassment.
  • Sex-based harassment is often perpetuated by shielding harassers and silencing victims, as male partners receive higher pay and more lucrative assignments than women partners and women on management and compensation committees have little power. Approximately 24 percent of partners surveyed felt that male "cronyism" contributed to the assignment of work and origination credit. (Source: 2016 Partner Compensation Survey by the legal recruiting firm Major, Lindsey & Africa.)

Zero Tolerance Manual

• The ABA Commission on Women in the Profession has made efforts to educate lawyers about sexual harassment and bullying.
• The most recent example is the Commission's publication, "Zero Tolerance: Modern Practices for Combating Sex-Based Harassment in the Legal Profession."
• Written and edited by a broad range of employment lawyers who deal with issues of sexual harassment in many different work settings, the book draws from the experiences of lawyers, judges, educators, investigators, mediators and legislators to set forth recommended policies and practices.
• It contains practical advice for legal employers and employees, including sample policies for prohibiting harassment and for progressive discipline.
• The manual includes up-to-date summaries of case law and best practices on developing and enforcing anti-harassment policies.
• It addresses new subject areas such as LGBTQ rights and gender-based bullying.
• It draws on the personal experiences of professionals who deal with sexual harassment issues every day, including lawyers, judges, educators, investigators, mediators and legislators.
• The manual deals with topics including:
  • The problems of sex-based harassment and the need for zero tolerance
  • The legal framework for sex-based harassment and bullying
  • Recent manifestations of sex-based harassment
  • Training and prevention
  • Developing and enforcing anti-harassment policies
  • Selected resources on sex-based harassment
• The manual found these effects of sexual harassment:
  • Law firms are slow to address the problem: In general, employers are guilty of minimizing women's complaints of harassment. Law firms in particular - and the profession as a whole - have been slow to set up proper systems for reporting, training and resolving the problem. (Source: 2001 ABA Commission on Women report, "The Unfinished Agenda: Women and the Legal Profession")
  • Lack of reporting. In a vulnerable position to start with, victims often do not report harassment because the harasser may be their direct manager, mentor or a key figure in the firm. Also, human resource departments, if they exist at firms, often have little or no autonomy.
  • Effects on victims. Victims of sexual harassment can become pariahs in a firm-and have their own behavior questioned. Harassment victims are often abandoned by fellow associates or partners, their billable time drops off and they begin to fail at the firms at which they previously had succeeded. (Source: 1997 study, "Determinants of Target Responses to Sexual Harassment: A Conceptual Framework")
• Suggested Solutions:
  • Awareness of implicit bias and the ways in which it can facilitate sex-based harassment is key to combating it. Training is needed to address it across organizations.
  • Anti-harassment training: Training should be given to all partner and practice heads. As the employer's typical first line of defense against harassment, law firm leaders must be intimately familiar with the laws addressing harassment in the workplace and the employer's harassment policy and procedures for such policies to be effective.
  • A training session about sex-based harassment should be included as part of the orientation for new lawyers and other new employees.
  • A yearly review of the sex-based harassment policy should be provided to all employees.
  • Specific and separate training should be required of individuals who are responsible for enforcing the policy.
  • Think "outside the box." Legal employers should think creatively about ways in which they educate their employees, welcome open discussion about harassment and discrimination, identify potential harassment issues early and create a work environment that treats women and men equally.

Revision of Model Rule 8.4

• The American Bar Association publishes model rules that state regulatory bodies can adopt to help define the ethics of the legal profession.
• Model Rule 8.4 deals with "Maintaining the Integrity of the Profession."
• In August 2016, the ABA strengthened language against discrimination and sexual and other harassment in Model Rule 8.4 (g).
• The language now reads that it is professional misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules."
• The change included a formal comment that stretched the rule to include conduct at "bar association, business or social activities in connection with the practice of law." That language sparked strong criticism from some groups and some state officials saying that the rule could infringe on free speech and religious freedom rights.
• Prior to the change in 2016, two dozen states had adopted some variation of the anti-discrimination and harassment language of Rule 8.4 of the ABA Model Rules of Professional Conduct.
• One state, Vermont, embraced the recommended language that included "conduct in the practice of law" after the ABA modified the rule.
• None of these states has encountered any problems with overzealous application of the rule or free speech infringements.