Thriving on Silence – Predators in the Workplace

Since the inception of the #MeToo movement, men and women everywhere have come forward to share their encounters with sexual harassment; resulting in enormous light being shed on the prevalence of sexual harassment in all aspects of Americans’ lives.

A 2018 NPR study found that 81 percent of women and 43 percent of men reported being sexually harassed in some form, during their lifetime^[1]. This includes sexual harassment in public spaces, private spaces and within the education system or workforce. The UCSD Center on Gender Equity and Health found that 45 percent of all respondents, male and female, reported that the most recent experience occurred within the past five years. Of these, 18 percent of women and 16 percent of men reported the most recent experience having occurred within the past six-months^[2].

While it is clear that men also fall victim to predatory sexual behavior, it is well-known that women encounter sexual harassment at a much higher rate than men – especially in the workplace. According to the EEOC, of the 7,514 charges filed alleging sexual assault in the workplace in 2019, only 16.8 percent were filed by men^[3]. In 2015, the EEOC created a task force to uncover why sexual harassment is so prevalent in the workplace. The study concluded the following:

1. Women working in positions where income is based off of “tips” are more likely to experience sexual harassment from management, co-workers and customers, than women who work in non-tipped positions^[4].
2. Women working in isolated jobs such as janitorial roles, in-home care giving, agriculture and hospitality, were more likely to endure sexual harassment or sexual assault due to an abuser’s sense of power and a lack of witnesses.
3. Undocumented or immigrant workers^[5] were more likely to experience sexual harassment or assault due to a lack of knowledge about their rights and protections.
4. Women who work in male-dominated occupations including construction, military and academia, reported frequent gender-based harassment. In particular, women in academic medicine reported more frequent harassment than their female colleagues in science and engineering.
5. Women working in positions with significant power differentials are more likely to be sexually harassed due to the fact that women are less likely to be in senior positions. Females in “junior” roles are more likely to experience retaliation, threat of job loss and the overall careless handling of internal complaints.

Although the MeToo movement exposed a huge gender bias and sexual assault problem, and prompted the discussion worldwide, men and women are still being sexually harassed in the workplace. Looking specifically at male dominated professions and professions where men maintain a much higher level of power than their female counterparts, it’s not shocking to see that sexual harassment lives in law firms.

A 2019 study conducted by the International Bar Association reported that sexual harassment in the legal industry is common and underreported. The study concluded that 43.3 percent of North American lawyers experienced sexual assault in the workplace. Further, three quarters of all sexual harassment incidents were never reported^[6].

Unfortunately, this research is consistent with what has been conducted by the American Bar Association. A 2018 survey of approximately 1,000 female attorneys in Massachusetts found that nearly 38 percent of respondents reported that they had received or been copied on, some type of unwanted personal or sexual communication in the workplace. Approximately 21 percent reported either experiencing or witnessing unwelcome physical contact in the workplace. Over half of these incidents were never reported^[7].

The Iowa State Bar Association posed a similar question and asked its members whether they had experienced or witnessed sexual harassment or sex-based discrimination in the past five years — roughly 84 percent of female attorneys and legal professionals and 34 percent of males in the same positions responded in the affirmative^[8].

The numbers are staggering. Thousands of female attorneys are sexually harassed or discriminated against in the workplace and only a fraction of these incidents are reported. Which poses the question of why? Why are attorneys under reporting this behavior, even after the MeToo movement exposed the skeletons in some of the most prolific institutions in the nation? Because it’s still a boys’ club and women fear retaliation.

Law firms, according to the 2019 United States Census Bureau, are only 38 percent female. While attorneys at the associate level are 45 percent female, the numbers drop drastically at higher level positions. Only 22 percent of managing partner positions, 22.7 percent of non-equity partner positions and 19 percent of equity partner positions, are held by women. Women are underrepresented in the legal profession and in many instances may be the only female attorney at their firm. Further, it became abundantly clear that many firms failed to implement and/or enforce anti-sexual harassment procedures or internal training prior to the MeToo movement. Anti-sexual harassment training firms noticed an increase in requests in the months after the Harvey Weinstein scandal^[9]. It is therefore not unfathomable for female attorneys who have been harassed to feel isolated and forced into silence, especially when there are no set reporting procedures in place.

The burden is now, more than ever, on law firms and attorneys in higher management to speak out and establish a strong office culture. The Center for American Progress published a detailed list of steps that many businesses can take to combat sexual harassment in the workplace. However, it is imperative that the following steps are enforced with intent and consistency, to be effective.

1. Establish a clear sense of leadership through consistency. Establishing a policy is only effective if the policy is enforced at all levels. The policy must be backed by consistency, accountability and transparency. When an employee makes a complaint, it must be taken seriously and investigated fully, no matter who is involved.
2. Establish equality as a core principle. This one sounds like a no-brainer. However, abusers often use sexual harassment as a method to isolate women and create an even stronger power differential. Therefore, it is paramount that equality is established in the workplace to show that this behavior is never tolerated — whether it’s at the associate level or partner level.
3. Update any existing policies and standards to reflect modern communication and experience. With the advancement of social media and virtual communication, it is crucial that firms modify and adapt. Snapchat or Instagram, for example are easy ways for abusers to single out employees in a “fun” environment, gain trust and then abuse that trust. Develop internal procedures that address the use of social media amongst all employees of the firm and create a level of separation or clear boundaries and expectations.
4. Enforce the law at all levels. Senior level partners are just as accountable for their actions as associates. Enforcing the policy on all members of the firm, at all levels, is essential to shaping the workplace culture. Sexual harassment coming from an associate is just as inappropriate, as it is coming from an equity or named partner.
5. Work collectively to combat bias and stereotypes. Victim blaming, stereotypes and gender bias have been around for a very long time. Ignoring off hand comments regarding these topics is counter-productive and creates an environment that is accepting of this behavior. Therefore, it is critical to establish clear expectations about workplace dialogue and to communicate that victim blaming is neither appropriate nor tolerated.
6. Remember: Most incidents of workplace sexual harassment never get reported let alone make their way to court^[10]. Therefore, it is important to empower employees by taking complaints seriously and ensuring that retaliation has no place within your firm.

Allowing predators to fly under the radar to protect a firm’s image is not only despicable, but hypocritical. As attorneys we took an oath to uphold the constitution and to be administrators of justice.

It’s time to do just that. It’s time to get our houses in order.

[1] Chatterjee, Rhitu (2018, February 21). NPR – A New Survey Finds 81 Percent of Women Have Experienced Sexual Harassment. https://www.npr.org/sections/thetwo-way/2018/02/21/587671849/a-new-survey-finds-eighty-percent-of-women-have-experienced-sexual-harassment.

[2] It should be noted that this study was published in April 2019, and these percentages may have shifted slightly. Chatterjee, Rhitu (2018, February 21). NPR – A New Survey Finds 81 Percent of Women Have Experienced Sexual Harassment.

[3] EEOC. (2019). Enforcement and Litigation Statistics. https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm

[4] Elyse Shaw, M.A., Ariane Hegewisch, M. Phil., and Cynthia Hess, PhD. (2018, October). Sexual Harassment and Assault at Work: Understanding the Costs, Institute for Women’s Policy Research.  https://iwpr.org/publications/sexual-harassment-work-cost/; National Conference of State Legislatures (2019, March 28). Sexual Harassment in the Workplace. NCSL https://www.ncsl.org/research/labor-and-employment/sexual-harassment-in-the-workplace.aspx#Sexual%20Harassment%20in%20the%20Workplace.

[5] Immigrant workers includes workers with legal status. Overall, victims reported that a lack of knowledge about legal protections played a role in their unwillingness to report abuse.

[6] Kaye Wiggins, (2019, May 15). Third of Female Lawyers Have Been Sexually Harassed, Report Finds. Bloomberg Business, https://www.bloomberg.com/news/articles/2019-05-14/third-of-female-lawyers-sexually-harassed-metoo-report-finds.

[7] Robert Derocher, (2018, September – October). As Women Lawyers Across the Country Say #MeToo, Bar Associations Play an Important Role. ABA, Vol. 43, No. 1. https://www.americanbar.org/groups/bar_services/publications/bar_leader/2018_19/september-october/as-women-lawyers-across-the-country-say-metoo-bar-associations-play-an-important-role/

[8] Hannah Hayes, (2019, January 17). Is Time Really Up for Sexual Harassment in the Workplace? Companies and Law Firms Respond. ABA, Dec/Jan 2019, feature. https://www.americanbar.org/groups/diversity/women/publications/perspectives/2018/december-january/is-time-really-for-sexual-harassment-the-workplace-companies-and-law-firms-respond/.

[9] Hannah Hayes, (2019, January 17). Is Time Really Up for Sexual Harassment in the Workplace? Companies and Law Firms Respond. ABA, Dec/Jan 2019, feature. https://www.americanbar.org/groups/diversity/women/publications/perspectives/2018/december-january/is-time-really-for-sexual-harassment-the-workplace-companies-and-law-firms-respond/.

[10] Jocelyn Frye, (2017, October 19). Center for American Progress; How to Combat Sexual Harassment in the workplace. https://www.americanprogress.org/issues/women/news/2017/10/19/441046/combat-sexual-harassment-workplace/; Samantha McLaren (2019, February 21). 7 Impactful Ways to Combat Sexual Harassment in the Workplace. [Blog Post] Retrieved from: Linked in — https://business.linkedin.com/talent-solutions/blog/company-culture/2019/effective-ways-to-combat-workplace-sexual-harassment.

Photo Credit to Chelsi Peter @chelspeter