Sexual harassment is much in the news in Canada these days. Most harassment policies define sexual harassment as including acts such as sexist jokes, suggestive or obscene comments, demands for sexual favors or unwanted touching. Rarely do policies include sexual assault as this is may be seen as a crime beyond the scope of a workplace policy with its own remedies under the law.
Sexual harassment is not just a woman’s issue. Men can be subject to pressure to enter into sexual relations with more senior women or from more senior men, if they are gay. The feelings of helplessness can be just as devastating for a man being victimized as for a woman.
It is very difficult for complainants to come forward as their complaint may be ignored or there may be reprisal action for having made a complaint. The simple request for the behavior to be stopped is itself fraught with anxiety about possible worse repercussions.
Women lawyers who are sexually assaulted by other lawyers (or by clients) rarely report this much more devastating act. Victims fear coming forward because they may not be believed or they may be accused of having initiated or consented to the act. Rape is a very difficult crime to prove. The risk and potential damage to the complainant’s reputation is so great that it can be career suicide whether they are believed or not. Perpetrators know this and it emboldens them to take the risk of committing this crime.
Sexual harassment and assault in law firms or other workplaces occurs more easily where there is a power imbalance. Whether it is a partner and an articling student, associate or legal assistant; a university professor and a student; a doctor and an intern or nurse – in most professions and organizations there is someone who holds the power to prevent a subordinate from achieving their professional accreditation, advancing further up the professional hierarchy or simply keeping their job.
Some lawyers find it difficult to believe that a woman lawyer could be assaulted by another lawyer in the workplace, in a hotel on a business trip, at the law firm retreat or after a social event where too much wine has been consumed. While everyone understands that any woman could be attacked in a dark alley, many lawyers assume that a woman lawyer is too well educated, too articulate or too self-assured to ever allow herself to be in a situation where she could be attacked. Sadly education, knowledge of one’s legal rights and professional confidence are no protection against predators.
Furthermore, some believe that if a sexual assault were to happen, a woman lawyer would immediately tell someone in authority. Laying a criminal charge, a complaint to the Law Society or even speaking to the managing partner can be career suicide for the complainant. Even if she is believed, the humiliation and stigma of having accused a more senior male lawyer of a crime may make it almost impossible to obtain another job if the complaint becomes public or known to many others in the firm.
Many younger and more naïve women lawyers believe that because they have joined a profession that is dedicated to upholding justice and the law that lawyers (as opposed to other professions) are much less likely to harass or assault them. Simply because a person is a lawyer, does not mean that they will refrain from taking advantage of the power imbalance inherent in most law firms. Sexual assaults happen in part because repercussions are very rare even where the victim is highly educated with a keen understanding of her rights.
So what can the legal profession do to protect those lawyers (especially those who hold less power in the firm) who are vulnerable to harassment or assault?
First and foremost, all law firms (and all workplaces) should have harassment policies in place. These harassment policies should include reference to sexual assault if at a minimum to alert potential vulnerable women that assaults can happen. Most Law Society websites have model policies often called Respectful Workplace Policies under their Practice Management section.
It is too late once a complaint is made to be scrambling to figure out how to investigate the complaint and reach a fair conclusion. There is a very high risk that the investigation will be bungled and do much worse damage to the professional reputations and emotional stability of the complainant or the subject of the complaint. Both sides need the protection of due process given how high the stakes are to their careers.
There is also, of course, a liability exposure to the firm if the firm mishandles the complaint and it ends up in the courts or with the Law Society.
One area where law firms sometimes make matters much worse for both parties to the complaint is where the firm does not keep the complaint confidential to just a few investigating partners. When partners share liability there can be pressure to advise all partners about the complaint.
However, the privacy and career implications for both parties must be considered. The partner designated to advise the firm on risk management or ethics should be consulted just as they are when any other potential partner liability is confidentially discussed. There are also Law Society rules to be considered.
No policy is helpful if it is not enforced. Partners need training on how to do a proper investigation (often using an independent outside investigator to remove the bias and conflict of interest of partners investigating another partner). The entire firm needs to know the policy exists and that it will be enforced. Publishing the policy and talking about it is one the best deterrents to harassment or assault happening in the first place. It is only the threat of the possibility or even better the likelihood of repercussions that will deter violators from acting.
All lawyers should also be made aware of the confidential independent advice they can receive from their Law Society’s Equity Ombudsperson who handles discrimination and harassment complaints. The CBA national Women Lawyers Forum will be rolling out an awareness and education campaign on sexual harassment and assault in 2015.
Just because we belong to a profession committed to upholding the law does not mean that some lawyers will not take advantage of the power of their position. Those who have been harassed or assaulted often cannot and will not speak up. It is up to all lawyers to make sure that everyone in their firm is protected from the few who despite their dedication to justice and the law may prey on those who are vulnerable.