By Bobbi K. Dominick

Much has been written about promoting diversity in the legal profession.[i]  Intense focus has centered around women, but the goal of diversity is to encourage, support, and assist those with many diverse backgrounds to enter, and excel, in the legal profession.  This includes diverse backgrounds and experiences such as national origin, race, religion, disability, age, and orientation. Organizations that promote diversity and inclusion perform better, achieve better results, and have increased employee engagement.[ii]  Diversity increases the bottom line of organizations.[iii]  Diversity is an issue worthy of our attention, for economic reasons, as well as the overall goal of improvement of the legal profession.

What are the barriers to increased diversity within the legal profession? A recent report examining female attrition stated this issue succinctly: “[O]ne of the most pernicious hurdles to achieving a satisfying legal career is the unfortunate and continuing problem of sexual harassment.”[iv] This article will examine sexual harassment as a barrier to diversity and provide thoughts for improving diversity.

Harassment is Just One of Many Barriers to Diversity in Law

Recent Advocate articles provide an excellent summary of statistics on female attorneys in Idaho,[v] and bias and its potential impact upon the advancement of women in law.[vi]  Those articles, and other research,[vii] point to numerous factors contributing to women leaving the profession or not advancing to positions of greater authority.  Some factors may be purely personal choices on the part of individual attorneys who choose a different career or life path.  But some reasons for women and minorities leaving the practice may be within our control, and eliminating harassment as a barrier is one of them.

Harassment in the Legal Profession: Statistics and Surveys

A discussion of the impact of workplace harassment must start at the beginning. How prevalent is harassment in the legal profession? Statistics are sporadic and often hard to find, especially if we focus solely upon Idaho.

First, those in protected classes are clearly underrepresented in the law, and thus often in the minority. The articles referenced above cite statistics about women (in Idaho, 28% of attorneys are female, nationally the number is 36%). Statistics nationally indicate a low percentage representation for attorneys with disabilities (perhaps as low as 7%),[viii] those of Hispanic origin (9.9%), Black (5.5) and Asian (4.9).[ix] Since these groups are underrepresented does this mean that they are more susceptible to harassment?   According to the EEOC’s recent study of workplace harassment, it does.[x]

Another important point from the recent study: “[w]hen the target of harassment is both and member of a racial minority group and a woman, the individual is more likely to experience higher rates of harassment than white women. Moreover, when the target of harassment is both a member of a racial minority group and a woman, the individual is more likely to experience harassment than men who are members of the same racial minority group.”[xi] While the research is sparse, the same is likely true of those who are members of more than one protected class.

Other states have conducted surveys to discover the prevalence of harassment.  For example, a 2005 California survey found that 50% of female attorneys reported experiencing sexual harassment.[xii] The Florida Bar’s study found that 17% had been subjected to harassment based on their gender.[xiii] Utah’s 2010 survey revealed that 37% of women attorneys responding had experienced verbal or physical behavior that created an offensive work environment. Of those, 86% identified gender as the basis for the harassment.[xiv]

As you can see, there is a wide swing in the numbers.  Some of that may be attributable to the way the word “harassment” is defined, the way survey questions are worded, or individual nuances in the responder’s understanding of harassment.  As the EEOC study noted, the numbers who reported harassment rose when the questions included gender demeaning and derogatory behavior.[xv]

Despite the difficulty of interpreting these statistics and applying them to the Idaho experience, several things are certain:

• Harassment does exist,
• It likely exists in legal practice in Idaho, and
• It is a barrier to women and minorities thriving.

Harassment in the Law: What Kinds of Behaviors are We Talking About?

Harassment that doesn’t involve propositions or sexual language can still form a barrier to diversity.  The EEOC has said: “harassment not involving sexual activity or language may also give rise to Title VII liability…if it is ‘sufficiently patterned or pervasive’ and directed at employees because of their sex.”[xvi] Social science research indicates that mistreatment and incivility, whether it rises to the level of illegal harassment or not, can lead to the same kind of harm as harassment, and creates a barrier to advancement.[xvii]  Research also tells us that those subjected to this kind of treatment often respond by leaving the organization.[xviii]

Recent surveys and stories have detailed other types of harassment that female attorneys have been subjected to, often not even the typical sexual propositions, but rather demeaning comments and behavior.[xix]  Examples that women have shared with me, or that have appeared in articles or case law,  include bringing a female attorney into the courtroom as “window dressing,” because “witnesses prefer young and pretty,” or it would be good for “the jury to see a pretty face.” Other examples might include comments made about lipstick, clothing, body parts, makeup and hair, directed only towards women, implying a sexualized or diminished view of the person and their capabilities. Jokes about women could be demeaning, like using #MeToo as a punchline, or comments about women succeeding by “sleeping with the judge,” implying that women cannot advance on their own merits without using gender as an advantage. Comments about women not being serious about their legal careers because they want to have babies and start families also fall into this category (speaking from personal experience).  Other micro-aggressions might include labeling women’s behavior as “bitchy” or “aggressive,” or cautioning against being “naïve” or “weak.”

Harassment based on race, national origin, religion, disability is often this kind of “negative stereotype” harassment.  Behavior, comments, or attitudes that make a particular class of people feel unwelcome, unappreciated, or unrecognized discourages them from remaining in a profession or organization. Examples might include using pet names, interrupting or ignoring, or dismissive comments. These types of behaviors impede diversity and prevent the advancement of women and minorities.

We Don’t Have a Problem, Do We?

Many legal professionals reading this article may think to themselves: “well, this is all theoretical, because we don’t have a problem in our organization.” That type of thinking is naïve at best and damaging at worst.  Research indicates that every type of profession may experience protected class harassment.[xx]

The EEOC consulted with experts and examined what types of organizations are most at risk for harassment.  Some of the risk factors clearly apply to legal organizations:

• Homogenous workforce: Ironically, when an entity is made up of primarily one gender (or other protected class, that makes the organization more susceptible to harassment, and the legal profession, based on the above statistics, clearly falls into this risk factor.
• Workplace “norm” dependent environments: When the written or unwritten norms for how people must “behave” tend to favor the dominant class, those who do not meet those norms are harassed at higher rates.  This could affect women, but also those with disabilities, different national origins, different religions, and different orientations.
• Power disparity environments: A high power or valuable asset, like a rainmaking senior partner, offers a power disparity that creates a higher risk of harassment.
• Client satisfaction factors: When the environment is client dependent, there is a higher risk of harassment, because bad client behavior may be tolerated or even condoned. [xxi]

Another common misconception: “no one has complained, so it may be happening elsewhere, but not here.” But the statistics tell a different story.  The vast majority of those who are subjected to harassing behavior do not complain at all. For many, the solution is to put up with the behavior, minimize the seriousness of it, try to ignore it, or simply to leave that environment.[xxii]  This not only damages the diversity of that particular organization but also can be a setback to career advancement for the individual who leaves.

Even when someone does complain, those in a position to respond may not act.  This happens for many different reasons. Perhaps most common is that the person to whom the individual complains views the behavior from a different lens, and may not see the harmfulness of the behavior.  Other common reasons the behavior might be ignored include the high value of the offender, the difficulty of resolving conflict in the workplace, or perceptions of the person complaining (i.e., questioning motives for complaining, etc.) Another common reason is that there is no process in place in many legal organizations (especially smaller ones) to address complaints, so leaders simply don’t know what to do.

So What Do We Do About This? Some Suggestions

Study and Prevention

A current survey and study should be conducted on harassment (all protected classes) in the legal profession in Idaho.[xxiii] While we know from statistics in other professions that harassment likely exists, we need to know the types of issues we are dealing with specifically in Idaho. Our professionalism efforts should also help lawyers focus upon effective human resource management, including both diversity and harassment prevention.

Internal Organizational Efforts

At a minimum, each legal organization in Idaho could assess the impact of harassment within their organization and develop strategies for removing this diversity barrier diversity. Every law firm and legal department should engage in proactive efforts to raise the level of concern about harassment that might be occurring, and encourage attorneys to come forward with complaints.  This includes serious work on training, policies and complaint resolutions efforts.  While specific suggestions are beyond the scope of this article, there are many ways to find these suggestions.  Two sources are listed in the endnote.[xxiv]

Where Do We Go From Here?

The discussion above highlights some of the difficulties of, and potential solutions for, eliminating harassment in the law.  While beyond the scope of this article, any serious discussion surrounding eliminating bias and harassment must also include a discussion of whether ethical rules should address harassment and bullying.  Many states have adopted some version of Rule of Professional Conduct 8.4, addressing the ethics of discriminatory behavior.  Idaho recently went through a process of assessing this, but after the Bar (on a divided vote) concluded that the rule should be adopted, the Idaho Supreme Court (on a divided vote) declined to implement the rule and directed more study on the issue.[xxv]  Firms and entities can internally deal with harassment within their walls, but some protected class harassment is perpetrated by attorneys outside our firm/organization.  The only effective way to combat such offensive behavior, and provide accountability, maybe through ethical rules.

In addition, efforts to promote professionalism in the practice of law may also be an effective deterrent to harassment, as many studies have found that bullying and disrespect provides a breeding ground for unlawful harassment.[xxvi] It may be time to more closely examine, and enhance, our professionalism efforts to specifically address this issue.

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[i]  See, e.g., Deborah L. Rhode, From Platitudes to Priorities: Diversity and Gender Equity in Law Firms, 24 Georgetown Journal of Legal Ethics 1041 (2011); Douglas E. Brayley & Eric S. Nguyen, Good Business: A Market-Based Argument for Law Firm Diversity, 34 J. Legal Prof. 1, 4-8 (2009); Jason P. Nance & Paul E. Madsen, An Empirical Analysis of Diversity in the Legal Profession, 47 Connecticut Law Review 271 (2014).

[ii] Stefanie K. Johnson, What 11 CEOs Have Learned About Championing Diversity, Harvard Business Review (August 29, 2017) located at https://hbr.org/2017/08/what-11-ceos-have-learned-about-championing-diversity.

[iii] Id.

[iv] Stephanie Ann Scharf, The Problem of Sexual Harassment in the Legal Profession and its Consequences (February 2018) located at https://www.scharfbanks.com/sites/default/files/assets/docs/report.pdf.

[v] Jessica R. Gunder, Women in Law: A Statistical Review of the Status of Women Attorneys in Idaho, The Advocate, (February 2019).

[vi] Alison M. Nelson, Spotlight on Bias, The Advocate (February 2019).

[vii] See, e.g., Achieving Long-Term Careers for Women in Law, report pending, ABA Commission on Women in the Profession, located at https://www.americanbar.org/groups/diversity/women/initiatives_awards/long-term-careers-for-women/.

[viii] See ABA Disability Statistics Report, 2011, ABA Commission on Mental and Physical Disability Law, https://www.americanbar.org/content/dam/aba/uncategorized/2011/20110314_aba_disability_statistics_report.pdf.

[ix] https://www.bls.gov/cps/cpsaat11.htm.

[x] U.S. Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the Workplace, EEOC (June 2016) located at https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm (EEOC Report).

[xi] EEOC Report, at pp. 13-14.

[xii]  Chang and Chopra, “Where are All the Women Lawyers?” https://www.360advocacy.com/wp-content/uploads/2015/10/ChangChopraArticle-1.pdf.

[xiii] The Florida Bar, 2015 YLD Survey on Women in the Legal Profession,  https://www-media.floridabar.org/uploads/2017/04/results-of-2015-survey.pdf.

[xiv] Women Lawyers of Utah, The Utah Report: The Initiative on the Advancement and Retention of Women in Law Firms (Oct. 2010), at http://utahwomenlawyers.org/wp-content/uploads/wlu_report_final.pdf.

[xv] EEOC Report, p. 8.

[xvi] EEOC,  1990 Policy Guidance on Current Issues of Sexual Harassment, https://www.eeoc.gov/policy/docs/currentissues.html.

[xvii] Lilia M. Cortina, et. al., Researching Rudeness: The Past, Present, and Future of the Science of Incivility, 22 Journal of Occupational Health Psychology 299 (2017); Sandy Lim & Lilia M. Cortina, Interpersonal Mistreatment in the Workplace: The Interface and Impact of General Incivility and Sexual Harassment, 90 Journal of Applied Psychology 483 (2005).

[xviii] Chelsea R. Willness, et. al, A Meta-Analysis of the Antecedents and Consequences of Workplace Sexual Harassment, 60 Personnel Psychology 127 (2007).

[xix] A good collection of the types of behaviors identified as problematic is included in the Florida Bar’s 2016 Survey on Gender Equality in the Legal Profession, located at https://www-media.floridabar.org/uploads/2017/04/2016-Survey-on-Gender-Equality-in-the-Legal-Profession.pdf

[xx] See, e.g., Heather McLaughlin, Who’s Harassed, and How? Harvard Business Review (January 31, 2018) located at https://hbr.org/2018/01/whos-harassed-and-how; Audrey Carlsen, et. al, #MeToo Brought Down 201 Powerful Men.  Nearly Half of Their Replacements are Women, New York Times (October 29, 2018) located at https://www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html.

[xxi] EEOC Report, pp. 25-28.

[xxii] Mindy Bergman, et al., The (Un)Reasonableness of Reporting: Antecedents and Consequences of Reporting Sexual Harassment, 87(2) J. Applied Psychology 230 (2002).

[xxiii] Some studies have been done in the past, but the author could not locate any recent studies or surveys.  In the current #MeToo climate, such a study would be useful in developing solutions.

[xxiv] Bobbi K. Dominick, Preventing Harassment in a #MeToo World, SHRM Publishing (2018)(detailing specific actions to take in all areas of prevention); ABA Commission on Women in the Profession, Zero Tolerance: Best Practices for Combating Sex-Based Harassment inthe Legal Profession (2018),and ToolKit located athttps://www.americanbar.org/groups/diversity/women/initiatives_awards/the-zero-tolerance-program-toolkit/zero_tolerance/; see also EEOC Report noted above.

[xxv] Chief Justice Roger Burdick, Letter to Diane Minnich, Executive Director, ISB, dated September 6, 2018.

[xxvi] Zero Tolerance, pp. 28-30. See also note xviii above for additional resources.