In February this year, a New York jury convicted Harvey Weinstein of rape. Weinstein’s egregious sexual harassment sparked a global movement and recognition that sexual harassment is pervasive and unacceptable. Yet with Weinstein’s conviction, it is easy to restrict #MeToo to a ‘Hollywood problem’, limited to the most severe cases. Weinstein’s conviction is only the tip of the iceberg. Bullying and sexual harassment are pervasive in the workforce and all of us have to take steps to effectively address the problem.
The legal profession is no exception. In 2019 the International Bar Association (IBA) released the largest ever global survey into bullying and sexual harassment in the legal profession. The Us Too? report revealed startling levels of bullying and harassment in the profession. One in two female respondents and one in three male respondents reported experiencing bullying while one in three women and one in 14 men reported experiencing sexual harassment.
Following the publication of the Us Too? report, the IBA undertook a global engagement campaign, visiting 30 cities across 6 continents to hold meetings and events with law firms, bar associations, regulators, civil society groups, government agencies and international organisations. The report and the global campaign uncovered important lessons, and significant deficiencies, in the profession’s current response to the harassment problem. We still have a long way to go.
Us Too? called on the profession to take ownership of the problem and accept responsibility for addressing it. Yet the global campaign uncovered a widespread unwillingness to do this; far too many firms were unwilling to accept that the statistics applied to them, too. The legal profession plays a vital role in adjudicating cases of bullying and sexual harassment and setting the legal standard. The ability of the profession to play this role is called into question if the profession itself cannot practise what it preaches.
Policies and training designed to address bullying and sexual harassment are proving inadequate. Not only are they not widespread enough (only 50% of respondents indicated their workplace had a policy in place) but they are also not having an impact on reducing prevalence. Respondents whose workplaces had policies and training were just as likely to be bullied or sexually harassed as those without. The top-down approach is clearly not working, rather we need an inclusive approach to developing policies and procedures. For example, one firm in New Zealand took the step of entirely scrapping their existing policy and rebuilding from the ground up, in consultation with all of their employees. Where employees have input into the development of policies they feel a greater sense of ownership over them, have greater knowledge about the procedures and feel more comfortable using them.
The current reporting systems are broken. 75.4% of sexual harassment cases and 57% of bullying cases are never reported. The principal reasons for a failure to report are the status of the perpetrator and a fear of repercussions. We need to develop more flexible approaches to reporting, so targets feel comfortable reporting without fear of suffering career consequences. One example of such an approach is a new app, Vault Platform, which allows employees to make confidential reports of misconduct, store evidence and build up a timeline of harassment until they are ready to share it with their organisation.
Even where incidents of bullying and harassment are reported, the response is often inadequate. Where incidents of bullying and sexual harassment were reported, over two thirds of respondents said the response was insufficient or negligible. There is a culture in the legal profession that bullying and sexual harassment are simply the ‘price’ of a career. Countless respondents spoke of being told to ‘just deal with it’. This attitude is hurting the profession. 65% of respondents who were bullied and 37% of those who were sexually harassed considered leaving their workplaces. Bullying and harassment promotes toxic workplace cultures, contributing to dysfunction, loss of productivity, reduced job satisfaction and poor workplace relationships. It also has significant physical and psychological consequences, including stress, depression and anxiety. As one female respondent stated, “I left the workplace, considered changing careers and contemplated suicide.”
It is not enough to say, “I am not Harvey Weinstein.” The legal profession must face up to the endemic problem in its own backyard. Misconduct in the workplace takes many forms and ranges from inappropriate sexual comments to screaming at a colleague to sexual assault. We must acknowledge that all forms of misconduct are reprehensible, with the less ‘serious’ behaviour still contributing to a workplace culture that tolerates, and even promotes, bullying and sexual harassment. We might not all be Harvey Weinstein, but we are all part of the problem. The legal profession has had its “Us Too” moment. The question now is, where to from here?
Kieran Pender is a senior legal advisor with the International Bar Association’s Legal Policy & Research Unit and authored the Us Too? report. He thanks Madeleine Castles for her assistance with this article.