sexual harassment

The fish stinks from the head

February 23, 2018 by

Sexual harassment allegations against the law firm Russell McVeagh serve as a reminder that as a profession, we need to take a hard look at ourselves and the work environment that we are offering to our staff.

Over the last four decades, there have been more female law graduates than male law graduates. Though women have been well represented at the point of entry into the profession, the profession loses them over time and few make it to the very top. 79% of law firm partners or directors are male. sexual harassment

That sexism and gender bias plays a role in the poor retention and poor career prospects of female lawyers is no secret. The Law Society has made a start in addressing the issue by raising awareness of unconscious bias (2017) and by implementing a Gender Equality Charter (2018) to support the retention and advancement of women in the legal profession.

Sexual harassment is rife too. But we do not know the true extent because it is widely underreported. The New Zealand legal profession is starting to have its #metoo moment as in the last few months anonymous reports have emerged about young lawyers who describe and speak out against the sexual harassment they experienced.

Sexual harassment in the NZ legal workplace

Intern about predator behaviour in the legal profession (page 17)

Culture of fear and reprisal

Lawyers who have been sexually harassed at work, are under enormous pressure to not make a complaint against their superior because they fear risking their career and livelihood.

After all, the legal community in New Zealand is very small. If New Zealand is a village, then the legal profession is the church congregation.

There is therefore a fear that if they make a complaint it will result in ‘career suicide’. For the same reason, lawyers do not report bullying at the workplace because it could equally have devastating effects on their careers. There is also a concern that they may be blamed for causing the incident to arise.

Lack of consequences for perpetrators reinforce inappropriate behaviour. Victims have nowhere to turn without an independent and external complaint mechanism. An HR department will have no power to thoroughly investigate an allegation, let alone to force consequences, certainly not if a successful partner is involved.

Silently complicit

The problem is compounded by the fact that colleagues who may be witness to sexual harassment may not speak up against it either. They too are worried that it will have negative consequences for their legal career. Even partners may remain silent and not ‘speak out’ if, for instance, a rain-maker of the firm is involved. Competition, even at partner level, is high. Everyone is under constant pressure to out-perform their colleagues who are constantly competing for the most billable hours. 

How often did we listen to a sexist remark and did not say anything? Simply because it is hard and tedious and no one wants to jeopardise their career prospects. But even the bystander can be silently complicit.

We may be tacitly endorsing bad behaviour by letting it go. Social pressure and social control can be very powerful tools. But leadership is needed to use these tools effectively.

Learnt behaviour

The lack of leadership is a key issue. Young professionals usually learn and adapt their behaviour from their superiors. The learning process starts at a very young age. Leadership sets the tone in creating a culture in a work environment; good or bad. Unprofessional behaviour tends to be passed onto the younger staff who inherited the bad behaviour.

For example, what message does it send to society if a District Court judge lets off a wife-beater with the argument that “there would be many people who would have done exactly what you did, even though it may be against the law to do so”. (Judge Brandt-Giessen discharged a man who “in a nasty assault” attacked his wife and child because his wife fell in love with another man). This decision is being appealed.

Similarly, a Wellington lawyer was also discharged without conviction after having pushed his wife twice during an argument and kicked her four times in the buttocks.

If judges do not hold offenders to account, who will?

In response to the sexual harassment allegation against Russell McVeagh, the Law Society was quick to blame alcohol for the transgressions.

Young people get very excited at the thought of getting involved in social events that have alcohol. That puts them at risk and the workplaces arguably is not the ideal situation

But it wasn’t the young and over-excited intern who groped the partner’s bum. This is a clear example of victim blaming.

Or to put it into Michelle Duff’s words:

“I can have a few drinks and somehow manage not to sexually assault my colleagues. If alcohol puts young women at risk because their defences are lowered, than shouldn’t the focus be on the predatory behaviour, not the wine they’re drinking?”

The Law Society attempted to diffuse the situation by pointing out that other industries are just as bad (which they are). But that is neither the point nor an excuse.

The medical profession is equally hierarchical and competitive. In Australia, the Royal Australasian College of Surgeons established an expert advisory group on bullying and sexual harassment to get to the bottom of the problem. The matter was also part of a parliamentary inquiry in 2016.

Instead of asking the victim to “speak out”, which puts the onus on the victim, we should aim for a “do not harass your work colleagues” culture. Employers must be held accountable for the culture of the organisations that they lead.

It is now up to the legal profession to decide whether it is continuing to brush the issue under the carpet or to actively and sincerely address it.

In this regard, the Russell McVeagh scandal may serve as a catalyst for meaningful change for that at least the next generation of lawyers will be able to work in an inclusive work environment.