From bystander training to clear reporting procedures, law firms and law societies can help
Like all professions, the legal profession has experienced significant cultural changes in treating sexual harassment and gender inequality. The #MeToo movement has brought heightened awareness of and scrutiny to workplace behaviour traditionally swept under the rug that disproportionately affects women.
But the legal profession also has some unique qualities that create additional challenges for women fighting against unwanted sexual advances at law firms. However, support is available.
How prevalent is sexual harassment in the legal profession
Gail Gatchalian, a partner at Pink Larkin's Halifax office, cited a International Bar Association report last year called “Us Too? Bullying and Sexual Harassment in the Legal Profession,” which found the following:
- One in three female respondents have been sexually harassed at work;
- Sexual harassment victims do not report in 75% of cases;
- Principal reasons for not reporting include the status of the perpetrator and fear of repercussions; and
- Individuals at workplaces with policies and training were just as likely to be bullied or sexually harassed as those at workplaces without policies and training
The IBA survey had almost 7,000 respondents from 135 countries.
In Canada, a survey of articling students by the Law Society of Ontario a few years ago found that 21 per cent of respondents had been subject to unwanted attention or harassment.
Every month, according Noel Semple writing for Slaw in 2020, the Law Society of Ontario’s Discrimination and Harassment Counsel receives approximately 15 complaints regarding alleged discrimination or harassment by a member of the legal profession. Sexual harassment is the most common complaint to the DHC, representing a quarter of the complaints.
Dealing with sexual harassment from clients
Gillian Hnatiw is a litigator in Toronto at Gillian Hnatiw & Co. She has represented several lawyers subjected to sexual harassment. She says client relationships can be difficult to navigate since many lawyers are self-employed entrepreneurs. However, Hnatiw says that victims of harassment from clients have several options. The first step would be to report internally within their firm.
If that does not resolve the issue, says Hnatiw, “there's a number of options available, none of which are entirely satisfactory.” Options could include a formal internal complaint to the law firm employer or directly to the client’s employer.
In extreme circumstances, a lawyer employee could claim constructive dismissal if the behaviour occurred in the workplace and the employer didn't do anything about it.
“I think that would be pretty extreme, and I haven't seen that,” says Hnatiw. “But legally speaking, it's an option that comes to mind.”
How law firms can create policies that work
Hnatiw says that before a law firm thinks about creating a policy, they need to think about their law firm culture.
“You can have the best policy, but if it sits in a drawer somewhere, it's no good.”
Hnatiw says firms need to foster a culture where employees know that it has zero tolerance for that kind of conduct and have the employees’ backs.
“You actually have to live the values articulated in your policy, and you have to create an environment that is in line with it,” says Hnatiw.
Surrey, B.C. employment lawyer Sara Forte with Forte Law, who advises law firms and lawyers, suggests the best approach is to be proactive. Firms should create a policy that allows people to make complaints if they feel harassed and lays out the procedures on what to do when there is a complaint. That also lets the employer deal with and contain any concerns.
How law schools can and are addressing the issue
Hnatiw says that traditionally the focus at law schools has been teaching women that they don't have to put up harassment and giving them options for reporting.
“But I think the flip side of that is also encouraging men who see the behaviour to intervene as bystanders [and] contribute to that culture of zero tolerance. There are things that can be done in law school that help foster that behaviour. It's only to the benefit of a profession,” says Hnatiw.
Advocates for fighting harassment point to bystander training as an effective way to shift the responsibility away from victims to fix the problem.
Articling programs and their contribution to harassment
Because their employment is temporary, articling students are particularly vulnerable to being victims of sexual harassment.
“When it is students who are calling me, while there are exceptions, generally speaking, the students are at the higher end of distress relative to other calls because of their vulnerability,” Cynthia Petersen, who was the Law Society of Upper Canada’s discrimination and harassment counsel at the time, told Canadian Lawyer columnist Ted Flett in an article in 2015.
Petersen pointed to the power imbalance for articling students, exacerbated by a shortage of articling positions in Ontario and the keen desire of most students to get hired back.
Reviewing the figures, Petersen said that roughly one in five complainants is a student and the majority are female.
“Articling students are the most vulnerable because their employment is inherently precarious,” says Hnatiw.
How #MeToo has shaped the issue
The legal profession isn’t immune to the #MeToo movement, as it has encouraged several women who would have traditionally stayed silent to share their stories. However, the conservative culture of the legal profession, its hierarchical structure, and focus on confidentiality mean that the #MeToo movement has not made its way to law firms in the same way as it has elsewhere. Many lawyers and articling students still feel that speaking up may affect their career prospects.
However, law societies in Canada have trained experts who can help victims who aren’t sure they want to go public with their allegations. In addition to the Law Society of Ontario’s Discrimination and Harassment Counsel, B.C. victims can call the Law Society of British Columbia's equity ombudsperson. Several other provincial law societies have equity officers who can provide a similar service.
“I would encourage people to make that call,” says Hnatiw. “There's nothing to be lost. It's free and anonymous. And the people on the other end of the phone have considerable expertise in these issues and help you navigate what your options are.”