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Yes, There Is Sexual Harassment in Big Law

Vivia Chen

July 27, 2017

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Ever wonder what you would or should do if you experience sexually harassment on the job? I think most women have given this at least a passing thought. 

Thanks to law professors Joanne Grossman of SMU and Deborah Rhode of Stanford University, we now have a primer on the subject. Writing in the Harvard Business Review, Grossman and Rhode basically advises women to do what former FBI director James Comey did: Keep a record of the offenses and "tell trusted friends and family." At the same time, though, they sound some cautionary notes: "Employment discrimination cases," they write, "have the lowest win rate for plaintiffs of any civil cause of action." Plus, the employee can expect some nasty retaliation (50 to 60 percent report retribution).

Every working woman should file that information away (the authors say that they focus on women, because they make up 90 percent of harassment targets), but here's what intrigued me: Are blatant forms of sexism still a problem in places like Big Law? I posed that question and others to Grossman and here's what she says:

Corporations and law firms require sexual harassment training and preach gender equality all the time. And most lawyers I know are conservative, cover-your-ass types. So is sexual harassment still a problem in law firms?
Every data point suggests that it is. Every study we looked at, including those about the legal profession, say that 40 percent of women will or have experience harassment. If you look at studies of law firms, two-thirds say they've seen it or experienced it. 

Really? But lawyers must be much more subtle about it. I can't imagine male partners, even the most powerful ones, at big firms acting the way Roger Ailes or Bill O'Reilly allegedly did toward women. 
We all tend to think that they're no longer literally banging on the hotel room door, but you still see those cases. We've aggregated information from a lot of different sources, and what we see is that things have not changed that much. Bar association studies show many instances of bad harassment conduct. I don't see any reason for optimism. I've worked on this for over 20 years, and I've never seen it under control.

If sexual harassment is so prevalent, why don't we hear more about it?
It's been quiet but that doesn't mean it's not happening. Until sexual harassment allegations at Fox [News] and Uber became news, this has not been a big topic. Arbitration has also made the problem go underground. We don't hear about these cases, which means there could be worst cases out there.

But even if the case goes to court, you say in your article that the odds are against the victim. Why's that?
The law is good but the courts are bad. Courts don't investigate the grievance procedure; they're very accepting of the employer's explanation. The law is not set up to ask whether the system works; the courts just ask whether the employer has a policy and grievance procedure. 

So employers have little incentive to settle. Is that why some cases, like the recent one involving gender discrimination against Chadbourne & Parke (now Norton Rose), seem to go on for a long time? 
Law firms mostly don't lose. They drag out these cases because sometimes they are doing their own litigation and don't feel the heat of legal expenses. And lawyers think they're above the law. They think, "we're such a good firm and we hire women so how dare you sue us!"

It sounds like it might be even harder to sue a law firm for sexual harassment or discrimination. You'd think that lawyers would be super vigilant about not inviting lawsuits.
The lesson from Fox is that 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. 

You've said that the game changer at Fox was that other women came out to complain about Ailes and O'Reilly. I hate to say this, but I can't see women lawyers joining the choir—at least not the ones who want viable law firm or corporate careers.
Most women don't complain. Only about 8 to 10 percent of women [who've experienced harassment] 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 that they think the situation is so bad that they have nothing to lose. Most will quit or ask to be transferred. Or they'll drink a lot. 

Well, you're even a bigger downer than I am. Anything hopeful you see with all the recent focus on sexual harassment?
When you see Fox outed, it empowers other women in media. Maybe the result is that we'll see more complaints. Gretchen Carlson wasn't some feminist who came out. But publicity emboldens people. We're talking about it, and that makes a difference.

vchen@alm.com

        

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After 18 years in Big Law (10 as a partner), I was inspired to educate women about their workplace rights. I packaged the "education" in a legal thriller with a female protagonist thinking that would draw women in. My novel Terminal Ambition includes an appendix setting forth 12 sets for a woman to take is she's sexually harassed. Step # 1 is to say "No" clearly. Step #2 is take notes. See Terminal Ambition for steps # 3 - 12.


Perhaps Professors Rhode and Grossman should ask women general counsels if they require outside counsel to adopt policies to prohibit sexual harassment and discrimination. I did that when I was GC of a Fortune 500 many years ago.


Maybe Vivia can pose that question in a blog.

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About The Careerist

The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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