Sexual harassment continues to be a significant problem in the legal world, especially among big law firms. More and more female lawyers are coming forward with accounts of sexually inappropriate behavior they have experienced on the job, whether it is unwanted touching, lewd jokes or blatant sexism.
Legal website Above the Law’s “The Pink Ghetto” series, which features shocking stories from harassment victims, highlights just how pervasive the issue is. Sexual harassment of young associates or partners often happens outside the office or courtroom itself. It can take place in social settings that are part of working in the legal profession, such as after a trial, during a meeting or at a conference or retreat.
Last year the Equal Employment Opportunity Commission (EEOC) received nearly 13,000 sexual harassment complaints. While the number exceeded claims of racial, religious or ethnic discrimination, it is likely just the tip of the iceberg. According to EEOC Legal Counsel Peggy Mastroianni, around 90 percent of sexual harassment victims choose not to take formal action.
There are a number of reasons victims, who are most often women, do not report sexual harassment or pursue criminal prosecution. Many fear various forms of retaliation such as losing their job, being taken off a partnership track or facing hostility from their bosses. The stakes are especially high when an attorney has spent years climbing the ladder at a big law firm.
“Sexual harassment is about power. Lawyers in large firms thrive on power and promise of advancement. Plus, men continue to dominate the top positions in large firms. Women have to work harder to get to the top,” said Betsy Havens, executive director of Strong Advocates, a Los Angeles employment law firm. “Despite legal protection from retaliation, women are too often forced into a position where they feel they either have to endure harassment or risk losing a career that has taken years to build.”
Victims also worry about facing blame, disbelief or inaction. In addition, lawyers who end up taking their sexual harassment cases to court must be prepared to see their private lives scrutinized in public. Unfortunately, employers, judges and juries often use women’s failure to report sexual harassment to prove that their claims are invalid and that they have other motives.
High Profile Court Battles
In April last year, a former senior associate of Squire Patton Boggs took to social media site Reddit to announce her resignation from the law firm, calling the legal industry “male-dominated.” In an explosive post that garnered thousands of responses, Kristen Jarvis Johnson wrote that she “encountered blatant gender discrimination, sexual harassment and a very clear glass ceiling” during her nine years at the international law firm. Her post sharing her experiences of working as a woman in a large law firm resonated deeply with Reddit users, many of whom were lawyers.
Squire Patton Boggs countered her comments by pointing out that 12 of the most recent 29 partner promotions at the firm were women. A spokesman said, “We are committed to a firm culture that promotes full and equal participation, advancement and retention of women.”
While Johnson did not file a claim against Squire Patton Boggs, a growing number of female attorneys from big law firms have come forward with allegations of sexual harassment following the high-profile sexual assault lawsuit brought by a former Faruqi & Faruqi LLP associate. In February 2015, a jury ruled that the law firm and its senior partner Juan Monteverde were partially liable for creating a hostile work environment. However, plaintiff Alexandra Marchuk won only $140,000 in damages, merely a fraction of the $9 million she had originally sought.
Marchuk had accused Monteverde of subjecting her to unwanted requests for oral sex, making vulgar jokes in the presence of coworkers and sexually assaulting her after a drunken holiday party. While the law firm argued that Marchuk was lying in an effort to win a hefty settlement, her attorney said Faruqi & Faruqi’s partners protected Monteverde because he was among the firm’s highest earners.
In the aftermath of Marchuk’s case, a former associate of McElroy Deutsch Mulvaney & Carpenter LLP filed a sexual harassment and gender bias lawsuit against the firm in March 2015. The case was settled for an undisclosed amount.
Elina Chechelnitsky alleged she was sexually harassed as a summer associate and assigned work only because a partner wanted to set her up with his favorite male associate. The lawsuit also claimed female associates were given far more non-billable work than their male counterparts. In addition, Chechelnitsky said the firm organized all-male golf outings and forced female associates to sign a confidentiality agreement that allowed them to socialize with male attorneys post work.
She claimed she was fired in retaliation for complaining about the harassment and the lack of gender equality. While the prominent New Jersey-based law firm attributed her termination to downsizing due to lack of work, Chechelnitsky pointed out that a male attorney was hired to replace her a few weeks later.
Gender Inequality at Law Firms
In many cases, sexual harassment goes hand in hand with gender inequality, whether it involves pay disparities, sexist comments or patronizing behavior toward female lawyers. Two big law firms were recently hit with gender discrimination lawsuits. Industry experts predict similar cases will continue to emerge as a growing number of female lawyers are empowered to go public with claims of gender bias and harassment at their firms.
An unnamed partner at the Washington, D.C., office of Proskauer Rose LLP sued the firm in federal court for “substantial gender disparities.” She was allegedly paid millions of dollars less than male partners, despite her “standout performance” at the firm. The plaintiff also claimed she was “overtly objectified based on her sex,” with one of the firm’s partners frequently making inappropriate comments about her appearance. She is seeking at least $50 million in damages in the lawsuit, which Proskauer dismissed as “groundless.”
In another high-profile case, partners from Chadbourne and Parke LLP are facing a gender bias lawsuit after they voted to eject a female partner who sued the firm for pay inequality last year in New York. Plaintiff Kerry Campbell claimed the law firm paid female partners less than their male counterparts and denied them advancement opportunities. Campbell’s lawyers argued her ejection was in retaliation for her lawsuit, while the firm suggested it was due to her poor performance as a partner.
Sexual Harassment Prevention Measures
During its annual meeting in August last year, the American Bar Association took a significant step to address attorney misconduct by voting to amend its rules of professional conduct to include a new anti-discrimination provision and prohibit sexual harassment. The ethics rules serve as guides for state officials to set policies and determine disciplinary action for lawyers who violate them. Around two dozen state bar associations already have similar anti-discrimination guidelines in place, but there had previously been no national rule.
Many firms use various forms of training that are meant to address sexual harassment, such as online courses, in-person classes and compliance videos. They typically cover the legal definitions of sexual harassment and the type of behavior that can get people into trouble.
However, there is hardly any evidence that suggests such programs are effective in ending sexual harassment in the workplace. While compliance courses may help employees understand the definition of sexual harassment, they may be doing little to change their behavior. In addition, firms often engage in the bare minimum of training just to generate a record of participation.
One key reason sexual harassment is still pervasive in big law firms, where employees are cognizant of the law, is due to a lack of effective policies and complaint channels. A law firm’s internal policies or workplace culture may discourage victims of sexual harassment from reporting inappropriate behavior and expose them to the risk of retaliation. Sometimes the harasser is a powerful player in the firm, such as a senior partner who brings in so much money that others have considerable incentive to look the other way.
“Large law firms can prevent sexual harassment by consistently enforcing zero tolerance sexual harassment policies, monitoring work culture and promoting more women to partner,” said Havens. “Large firms and other companies need to be sure that their sexual harassment policies provide a clear process for filing, investigating and resolving a complaint.”
Havens suggested that promoting more women to leadership positions in law firms would contribute to solving the problem. “Women leaders serve as a countervailing force to the machismo frequently encountered in big firm culture,” she said. According to Law360’s Glass Ceiling Report, currently only around 21 percent of partners in law firms are women.
Individuals experiencing sexual harassment in the workplace can take several steps to protect themselves. Havens recommends telling the harasser to stop their inappropriate behavior, gathering evidence, writing down details of what happened and reporting the harassment to human resources or a trusted leader in the firm.
While cases such as Marchuk’s have helped draw attention to sexual harassment and gender inequality in the legal profession, a lot more needs to be done. Law firms should take a closer look at how they can implement effective polices to prevent sexual harassment. In addition, they need to find ways to encourage employees to report incidents of discrimination and harassment without fear of retaliation.