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Let's Do the Time Warp Again - Sexual Harassment and the Legal Profession

Let’s Do the Time Warp Again—Sexual Harassment and the Legal Profession

Social media lit up last week after a recent article in the Toronto Star titled “Sexual harassment, discrimination forcing women lawyer to quit. Some say the profession needs its ‘Me Too’ movement”. While the article profiles women lawyers in Ontario who have experienced sexual harassment, Alberta lawyers expressed concern and told their own stories.

When I read the article, I thought I had passed into some sort of portal into a time warp, or perhaps it is a black hole. I entered the legal profession in Alberta in 1986, a newly minted female law school grad. I, along with my female classmates who made up about one-third of our graduating class, were shiny and idealistic. We thought that the practice of law was our oyster and that we had all the tools we needed in our toolkit, thanks to our excellent legal education, to crack into our dreamed careers.

We discovered systemic barriers and sexualization. Some behaviours were overt—I know women lawyers who were groped by men in positions of power or who were forced into uncomfortable or unsafe situations. We experienced “me, too” moments well before there was “Me Too.”

Other behaviours were more subtle. I remember skipping a small closing dinner because the partner on the file told me that I would probably have trouble with a senior representative of the client who was known to act inappropriately with young women. I thought he was being helpful—until he said the exact same thing about another lawyer I would be working with a few years later and I realized that his intention was to make me uncomfortable and cause me to step back on files.

I became involved in harassment work in the early 1990s, serving on my firm’s first Sexual Harassment Committee, charged with investigating and enforcing policy violations. I then moved into a senior in-house legal role in 1994 where I oversaw a state-of-the-art Anti-Harassment Policy. I used to say that I was qualified for the role by virtue of working in a law firm in the 1980s! As a woman lawyer, putting up with sexual harassment and trying to find safe harbours was just one of the working conditions.

I was shocked by the contrast between harassment behaviour and responses in law firms and in corporate life. When I attended social events with my former colleagues, they all wanted to hear about what it was like to work in a harassment-free workplace. My corporation was very progressive and was able to nip problematic behaviours early on in many cases, but there were also locations (not in head office where I worked) where serious misconduct still occurred. But I saw that it was possible to have a proactive culture where harassment was not acceptable. One would have thought that law firms would be concerned with minimizing potential risks and mitigating problematic behaviours, but they lagged far behind progressive corporate employers. I believe that this was because the benefit of allowing powerful high-billing lawyers to engage in inappropriate behaviours outweighed the monetary risk of a harassment claim and the costs associated with poor retention.

Around the time that I left private practice, my firm was conducting a survey into why women leave. The reasons were extensive but there were common themes: harassment (practically a working condition in some groups), discrimination (lower pay and poorer opportunities for women), lack of work-life balance. Based on my own experience, I know how long Bay Street employers (the subject of the recent article) have been trying to address harassment in the workplace. In the Toronto Star article, lawyers spoke about current surveys indicating the same issues (which the National Study also identified.) I want to note that the Law Society of Alberta convened a task force to look at why women lawyers leave and discovered that a shocking number of male lawyers leave private practice as well. But more women leave, or feel forced out, than men.

But it is nearly 30 years since I left private practice, and this recent article could have been written about women entering the profession in my day. It is both puzzling and disturbing that the collective brain power in our profession has not found solutions to harassment and that the same questions continue to be asked.

Why haven’t we succeeded in curtailing harassment? I know that curtailing harassment is possible because I worked in a relatively harassment-free workplace where everyone understood standards of acceptability and that there were consequences for unacceptable behaviour. Harassment policies and programs are only effective when they are refreshed and updated, and when the population they are designed to support believe that consistent actions will flow from reporting. I worked in similar roles in two Canadian-based multinational corporations. One had an active anti-harassment program, with policy refreshment quarterly, posters containing the harassment complaint contact phone number (a cell phone carried by designated staff 24/7) in every break room, and regular reporting to the board of directors of aggregated data. The other was proud of their zero-report stats, there was no policy refreshing, and the only place you could find a copy of the harassment policy itself was on the company’s intranet, under employment policies and benefits, in with the applicable mileage rate for using a personal vehicle on approved company business.

I also spent about ten years investigating workplace harassment or respectful workplace policy violations after I left corporate life and can confirm that the effort that employers put into communicating about their policy and ensuring that enforcement occurred is critical to the success of the program. Legal employers may want to consider if a lack of assurances about their harassment program could be linked with poor retention of women--or members of any other identifiable demographic group—is poor. This is beyond my pay grade!

But if it is true that lawyers and students from identifiable groups (not just gender) are experiencing harassment or discrimination in any form, as the recent article suggests, then my current role is relevant: all individuals who believe they are experiencing harassment, however defined, can call Assist for both professional counselling and peer support. When I first worked with harassment policies, I believed that reporting harassment or perceived harassment was obviously the right thing to do—how else can an employer improve its workplace and eradicate harassment unless it is brought to the employer’s attention in a safe and confidential forum?

Over time, however, I began to realize that the calculus is much more subtle. You have to believe that your employer will treat your concerns with respect, and that they will respond with appropriate actions. In serious harassment matters, I saw complainants who ended up on medical leaves, some of whom were not able to return to the workplace because of trauma and the occasional breach of confidentiality. Even employers who tried to do all the right things were unsuccessful in reintegrating harassment complainants back into their workplaces, usually resulting in hefty severance packages (and contributing to the perception that there was in fact a negative consequence to reporting harassment.)

I want to be clear about my usage of the term “serious harassment” as I don’t want to denigrate any harassing behaviours—the seriousness of an incident must factor in impact on the individual. But inappropriate comments are different from systemic and repeated conduct or physical assaults. Here is an example from my memory banks: a female employee reported that a male co-worker would make comments whenever she wore a silk blouse about how seeing her wearing silk made him think about how much he liked seeing women wearing silk in bed. Wildly inappropriate and way too much information for the workplace! The complainant did not feel comfortable having a one-on-one conversation with the co-worker, so a discussion was facilitated under the harassment policy and the issue was resolved quickly and without a discipline record. This is what I mean by less serious issues—the impact on the person who experiences harassment passes, the process concludes quickly, and resolutions are collaborative and non-disciplinary.

But when an individual experiences a prolonged toxic environment where their gender, race, ethnicity, religion or other personal characteristic is under attack, disciplinary action is generally warranted, and when people’s jobs are in jeopardy, they are often less cooperative and less likely to comply with instructions that the matter is confidential and is not to be discussed with anyone.

Anyone contemplating filing a complaint must go in with their eyes open that people who are in danger of losing their jobs due to inappropriate conduct may act out—they don’t have a lot to use. Unfortunately, disparaging the complainant is a common tactic and the employee who thought they could confidentially report harassment finds themselves under the microscope themselves. This happens even when anti-harassment policies assert that retaliation against a complainant will not be tolerated. I saw complainants step up to report offensive conduct only to find themselves blackballed after confidentiality breaches or who found themselves involved in lengthy litigation where they were attacked—not what they signed up for when they thought the harassment policy was there to help them.

So, I understand why lawyers are reluctant to file sexual harassment complaints which leads to the current situation where women lawyers in Ontario are speaking out about sexual harassment they have experienced.

Today, I want to talk about two things. First, how does an individual decide whether to file a complaint? And how can you get help when you are experiencing harassment?

Please note that while I am focusing on sexual harassment, the same considerations arise for all types of harassment and discrimination—please read my comments mutatis mutandi.

How do you decide whether to file a complaint or not? First, review your organization’s Respectful Workplace Policy—Respectful Workplace Policies replaced Harassment Policies which replaced Sexual Harassment Policies. With each iteration, a wider sphere of unacceptable conduct was prohibited, but not all conduct that we may think of as “harassment” or “bullying” may be covered. There is an independent body of case law in employment and professional discipline cases so know what is covered by the policy in your organization.

Consider the investigation procedure carefully so that you understand who in your organization will be informed of your complaint and what steps will be taken to protect your personal information—but understand that a copy of your complaint will generally be provided to the alleged wrongdoer as part of the rules of natural justice. Check also that the policy states that there will be no retaliation against a person who reports a concern in good faith.

Think about what you have heard about other respectful workplace complaints in your organization. If you know details about them, it is possible that confidentiality is not preserved well in your organization. Ask specifically what your organization will do to ensure that leaks do not occur.

Remember that you can get legal advice and that your lawyer may be present during your interview but know that this can change the dynamic in the investigation process.

Think about the amount of interaction you have with the alleged wrongdoer and whether you have any concerns for your safety. Exiting the workplace to work from home or taking a medical leave can be options but re-integrating back in once the investigation is over can be challenging. What support can your employer provide?

Note that there is no such thing as an “off-the-record” reporting of a harassment or respectful workplace policy violation. If you disclose a serious issue to someone in HR or management but ask them not to do anything about it, it is possible that your employer will have a duty to investigate it even without a formal complaint from you.

Finally, remember that not all complaints result in full-blown investigations. Many issues can be resolved by making the other person aware of the impact their behaviour has on you. Your employer may be able to facilitate resolution and put an action in place to ensure that the issue does not recur. Think about the range of resolution options that may protect your interests because termination of the other individual will only happen in egregious cases (and even then, many outcomes feel underwhelming.)

If you do not trust your organization or their respectful workplace policy (or there is no policy), you may want to seek independent legal advice. Because we are lawyers (or students), we often think that we don’t need legal counsel, but being objective about our own situations is tough. I frequently talk with lawyers going through critical situations who say that they cannot afford legal advice. I usually say that they cannot afford not to get legal advice when the future of your career may be at stake.

As lawyers and students, you can call the Law Society’s Practice Advisors for assistance—your conversations with them are confidential and they can provide legal advice. They also know how similar situations are being managed based on discussions they have with other individuals. You can reach the Practice Advisors at 1(866) 440-4640.

Many lawyers and students are talking about the fact that our Code of Conduct prohibits sexual harassment specifically. Rule 6.3-3 provides

A lawyer must not sexually harass a colleague, employee, client or any other person.

Rule 6.3-2 covers other forms of harassment:

A lawyer must not harass a colleague, employee, client or any other person.

Perhaps we have a specific rule focusing on sexual harassment because of the prevalence of the issue.  But I note with concern the report that the vast majority of legal professionals who contact the LSO’s discrimination counsel are racialized women or women with disabilities. It is not acceptable for a profession that takes pride in its status in our society to permit vulnerable members to be exposed to discrimination or harassment. We can, and must, do better.

If you believe that you are experiencing harassment, please read the commentary to the Code, which contains definitions and guidance, and call the Practice Advisors.

You can also get help through Assist.

Assist can provide you with peer counselling—a confidential meeting with another lawyer who has been through a similar issue that gives insight into what you are going through (call 1-877-737-5508). Or you may choose to access professional counselling through Assist’s free confidential counselling services provider (1-877-498-6898 which includes 24/7 crisis counseling). Do not feel that you have no choice but to accept abusive conduct. Your mental health will suffer if you try to “tough it out” until the economy gets better or something else happens.

Asking for help is not a sign of weakness. It is actually a sign of strength that you can recognize that what is happening is unacceptable and it is the first step on the journey to overcoming the negative impact on your well-being.


P.S. If you have developed strategies that helped you cope with harassment or discrimination in the workplace, please consider becoming an Assist peer support volunteer. We are holding a training session for new volunteers in March! Call me for more information.