#Yesallwomen/#Notallmen: Sexual Harassment in the Legal Profession
How do we understand bad things done to women by men? Through the few men who do them (#Notallmen)? Through misogyny in our culture as a whole? Through the experience of all women living with the risk that such bad things can happen (#Yesallwomen)? The ferocity of recent internet debate on this topic clouds the possibility that harm done by men to women should be understood as about all these things: the men who inflict it, the society in which it occurs and the lives of the women who live with the possibility of that threat.
In this column I explore the thought that sexual harassment and sexual discrimination in the legal profession must be understood with this sort of breadth of perspective: it is conduct reflecting the pathologies of the specific men who do it; it in no way reflects the conduct of all – or even that many – men in the profession; yet it is conduct that reflects aspects of our professional culture, aspects that we need to address to achieve gender equity and fairness.
I make my case through recounting a story from which I make some general observations, the story being my own experience of sexual harassment and assault (i.e., unconsented to sexual touching) by a senior lawyer early in my career. By doing so I will endeavor not to over claim. I know my story is only my own. It is necessarily a story that I tell from my own perspective. But the number of personal stories told publicly by women lawyers about sexual harassment is small; I am privileged to be senior enough and tenured enough and removed enough from the emotional turmoil of that time to take the risk of telling it. It may not be the best evidence, but it may nonetheless be evidence of something.
I began practicing law as an articling student in Calgary in 1996; I had graduated from the University of Toronto law school in 1994 but had gone on to complete my LLM at Yale and to clerk for Chief Justice Lamer. After my call to the bar I was working at a boutique litigation firm in the city; the firm did high end corporate-commercial cases, and was led by a very senior and eminent lawyer, “XY”, and a few much younger partners and associates whose work was primarily through him. Calgary was blessed by a number of very strong corporate-commercial litigators whose careers began in the 1960s – former Supreme Court justice Jack Major and current Alberta Court of Appeal justice Cliff O’Brien amongst them; XY was part of that group. He had a brilliant legal mind and a willingness to do whatever work was required to be fully prepared for his cases. He was a fierce advocate for his clients. XY was also generous with the pay and benefits that he offered to his partners and associates. The work he gave them was excellent.
Yet the conditions for doing that work were complicated by XY’s remarkably volatile personality – his temper was legend, and I later learned that one of XY’s opposing counsel said that he used to feel growing stress as he flew into Calgary for meetings or discoveries in which XY would be involved. When he shouted at me, XY would sometimes shake with rage.
As I discovered soon after joining the firm, XY was also willing to make derogatory comments about women, using the c-word in reference to a judge who had decided against his client, and commenting on the attractiveness – or not – of other women. He expressed surprise that a woman at his former firm did not have a boyfriend because she was very pretty, and wondered if she was a lesbian. He commented on how one of the legal assistants was “a little girl with big boobs” (this is a paraphrase based on my recollection). Eventually I became one of the people that he made comments about. I remember in particular one incident, where the topic of Princess Diana’s 1997 Vanity Fair cover had come up, and I had observed that people sometimes said that I resembled her. He responded, “except for your boobs” and then followed with “but it’s OK, you’ve got great legs” (again, a paraphrase).
I found this remarkably difficult to deal with. I did not feel like it would be remotely acceptable to say anything negative in response to his comments about other women. I very much wanted XY to think well of me; I wanted his approval and praise. And I did not know how to create a relationship with him where he would consider the quality of my professional work, without considering the quality of my appearance. I did not know how to discourage one sort of reaction while generating the other, and I generally just tried to be positive with him, even while feeling that this was almost certainly not helping the situation.
Things became much worse at firm social events when XY was drinking. At the firm dinner to celebrate my call to the bar, he put his hand on my leg under the table as we were eating. And at a firm retreat, as we sat around a campfire after dinner, he put his hand up the back of my shirt and undid my bra.
After that incident it was obvious that I had to do something – that the situation was out of hand. I spoke to the two male partners who worked on litigation with XY and to my husband (who had known about the earlier incidents as well); the more senior of the partners talked to XY, and XY apologized to me.
After the apology XY did not sexually touch me again, and I do not remember him commenting on my appearance. But his outbursts and temper continued; they were not directed just at me, but for the next year I was the lawyer working most closely with him, and so internally to our firm I bore the brunt of it. I found that almost as difficult and upsetting as his sexual harassment, although in some ways it was difficult to separate the two experiences. They felt like different versions of the same behaviour. The two partners did what they could to protect me. One began working on the file I was on, and tried to create space for me from XY. When we were away for the arbitration, he made sure that I was able to go home for a break. I was also protected by the in-house lawyer at the client, who observed XY’s behaviour and did what he could to ameliorate it, and to protect me from it.
Nonetheless, after a year, I had to leave. My departure was greatly assisted by the lawyer at the client, who worked to have his company consent to my joining a firm where there would otherwise have been a serious conflicts problem; I know he understood why I was leaving, and I know he had to make real efforts internally to get that result.
I never had another experience like that in legal practice, although I worked almost entirely with senior male lawyers over the next 5 years.
In the 16 years since, in thinking about what happened to me, it is obvious to me that XY’s behaviour was very much reflective of his own personality and issues. In the words that I would use now as a parent, he seemed to me to lack self-regulation: if he wanted something he took it; if he felt something he expressed it. He had no grasp of the difference between professional and personal space, of the effect of his degrading comments about women on the women he worked with, of the effect of his angry outbursts on others.
It is also equally obvious to me that most male lawyers do not act as he did. Even the male lawyers at his own firm and who worked at his client did not follow XY’s example or endorse his behaviour. In addition, incidents of sexual harassment would not normally include actual physical touching. His behaviour was – and is – the exception.
But it also seems to me that his actions are not divorced from the professional culture of lawyers – a culture I am part of. After all, his behaviour – at least his comments about women and his rage – was tolerated for over 30 years and had little real effect on his professional success (although it certainly had some). At the end of the day, I took no steps to derail that success. And while it was clearly not normal, XY’s behaviour was also not entirely aberrational; excess drinking, angry outbursts and sexist comments are things that lawyers other than XY engage in, albeit to a lesser degree. I drank to excess at more than one firm event, and I’ve said sexist things. Even the harassment is something that more than one of my friends experienced in legal practice (and once you have more than one close friend who something has happened to, the law of probabilities suggests that there are an awful lot of women it has happened to). Some general statistics on complaints about harassment and discrimination by Ontario lawyers, indicating 132 complaints about sexual harassment between 2003 and 2011, are here: http://www.dhcounsel.on.ca/pdf/DHC_Summary_Report_(2003-2011)_(00384198).pdf
Yet even if I’m right, what to do about it is not obvious. Our professional culture reflects our broader society; the insistent requirement that women be sexually attractive even if professionally accomplished, the verbal and physical aggression directed at women, the blasé attitude towards derogatory discussion of women, are things that occur across Canada, not just across the legal profession.
I am also not inclined to think that sanctions or discipline are the answer. I never seriously considered complaining about XY’s conduct to the law society – the personal exposure and costs of being a complainant to my career and life were not something I wanted to bear. My guess is that my reaction is the typical one. I also do not think post-facto reactions are the most effective tool in relation to any ethical issue.
Yet I cannot suggest that we give up – I will not suggest that. My niece is entering this profession and one day my daughter may do so. I never want them to experience what I did, or to live their professional lives making an effort to avoid it happening – going along with sexist banter in fear of being an outsider or a target. I refuse to believe that we cannot do better. If we can learn to call each other learned friends, and express our most hostile thoughts with respect, then surely we can try to create a culture where the subject of our colleagues’ “hotness” is not discussed, where we create appropriate separation between professional and sexual interactions, where senior lawyers embrace the limits on personal interactions that come with seniority and power, and where drinking much too much is not a normal condition of social interactions between lawyers.
That learning comes through acculturation. And I have told this story as much as anything in the hopes that it will begin productive conversations and – hopefully – further progress towards that kind of change.
Thank you for this very compelling and courageous post, Alice. It’s a timely reminder that this type of experience still occurs often in our profession, and much needs to be done to change the culture and dynamics that abide it.
Thank you, Alice, for this. I, too, hope that the conversation following on will be productive of change.
Thank you for writing this. Even though I have only just begun my legal career, I can already relate very much to your story. It is encouraging to know that it is possible to move past bad experiences and continue on to become excellent lawyers, like you.
Thank you, Alice! Overcoming sexual harassment seems to be another item on the long and expanding list of unfinished feminist business. I very much agree that we cannot give up, and you are surely right to suggest that complaint-based mechanisms are unsuitable. Here is hoping that the work of acculturation will not solely fall to women in a position to do so, but by anyone in a position of leadership in the legal profession. Yes, male colleagues, I am looking at you!
This is very important and very well said. I am going to give it to all my students.
Thank you Alice – for your bravery, your honesty and your desire for change.
Thank you for sharing your story, Alice. You’ve made some excellent points regarding the difference between knowing the limits of acceptable behaviour and making a concerted effort to call colleagues out when they transgress those boundaries. Sexism is never acceptable.
Thank you Alice for writing this, it is very courageous and important. At Windsor Law some students organized Sexual Assault Awareness Day on March 5th this last year (I believe a similar event was held at some other Ontario schools). Their vision was to “break the silence” and begin a discussion about experiences that are often hidden because of personal shame as well, in law school, fear of the professional consequences of coming forward to disclose incidents of sexual harassment and assault. Many, many students have told me that they fear that if they step forward as whistle blowers they will not be believed (especially if the perpetrator is a senior lawyer or professor), that they will experience difficulty getting a job etc – and that there is huge pressure to stay silent. March 5th was organized by some inspirational students who want to change this culture. If anyone reading this is interested, I can share both the research paper that these students wrote for me about sexual assault and law school and legal profession culture, and my own speech on March 5th in which I spoke public about my own experiences of sexual violence (email me for the complete papers and /or read an excerpt of my speech here
http://pantyhoseandthepenalcode.wordpress.com/2014/04/21/on-moving-forward-into-the-light). I know that I am but one of many,many women out there who have had these experiences and again, I want to congratulate Alice for her courage in writing this blog. I hope that more of us who are now senior and secure in our profession should use this position to speak out and break the silence for others.
“Even the male lawyers at his own firm and who worked at his client did not follow XY’s example or endorse his behaviour. ”
I think you let the other partners at the firm off the hook too easily. Clearly XY was the problem, but every partner who knew about his behaviour for 30 years and did nothing is just as complicit.
Put it another way – if the partners at his firm were willing to stand up and say “no” his behaviour would have been solved in a day. They have to be willing to say “no” to their partner even if he’s a monster biller.
Go look up the story of Thomas Haythe. Name partner, gone in a day.
Alice,
A subordinate position (job-on-the-line, lack of witnesses, ineffective regulatory boards, alienation, inadequate training in dealing with sexual harassment, etc.) for most women, is the breeder of silence and inaction. The narcissist is counting on being able to victimize whomever he/she wants without consequences. While he was raging and presumably victimizing others with his unethical conduct, “you never seriously thought of complaining to the law society ” because “the personal exposure and costs of being a complainant to my career and life is not something I wanted to bear.” At the time, accepting the harassment was easier and safer for your career. Do you wish you had acted differently? I would suspect that “XY” felt your silence (along with that of others in the firm) was empowering him to continue his narcissistic rages and unprofessional conduct. In my opinion, taking action (filing a complaint; as risky and difficult as it seems) is the true test of one’s courage and determination to “make it better” for oneself and others.
No more silence, no more victims means law firms need to educate everyone about what to do about sexual harassment in the workplace. Zero-tolerance would be a good start.
I am glad this post has resurfaced on the main page comments sidebar and granted me the chance to read this piece, Alice.
Jamie and others have already expressed this, but again sincerest thanks for sharing your personal account.
Judging from comments, it is sadly not only a thing of the past.
This is why I’m puzzled by something here. Am I interpreting this right? Is there truly a feeling here that workplace harassment, lewd conduct, and overt abusiveness is not something for the law societies to be held accountable for? How can we as a profession maintain our moral authority to regulate members if we abdicate responsibility on this egregious misconduct such as this?
This involves power imbalance, threatens to impair gender equality, and sends all kinds of the wrong messages to the public about men in the legal profession, the types it attracts and the kinds it condones.
If you want to improve the reputation of the legal profession, rolling over as a regulator when it comes to powerful, egotistical men in suits who drink too much and play slap and tickle with their frightened subordinates is not the way to do it.
And how can we say a law society’s responsibilities are discharged when young women, including those with Ivy League credentials and a clerkship under Lamer, can hardly even contemplate negotiating a complaints process out of fear? What kind of message does that send a woman in law school today?
I think it should be a complaints mechanism, but I appreciate that what we have might not work very well. But that should be something we fix, no?
We just disciplined a lawyer in BC for dropping the F-bomb in a heated shouting match with a witness in a courthouse. That was a single incident. We didn’t talk about solving abusive language by shifting the burden off of the offending individual and on to the rest of us through acculturation.
Acculturation is not a disciplinary outcome. It is an objective independent of the need to attach specific consequences to specific misconduct.
We have other tools at our disposal. When undertakings are breached, we have a duty to report, even if it’s not an undertaking we are directly the beneficiary of. We owe all kinds of duties to hold our peers and ourselves accountable, and most of these duties don’t require a law society’s touch. But if there is a bully involved who cannot be controlled, we need to know there is protection.
We should have a regulatory mechanism in place that effectively addresses this blight. If a complaint mechanism initiated by the aggrieved is not tenable, and if even the most gifted and upwardly mobile of young female lawyers cannot dare to use one, then the regulator needs to step up.