Dealing with harassment

Law firms struggle with how to deal with sexual harassment, but changes are afoot.

The legal profession continues to check itself in the post-Harvey Weinstein era, and law firms are being reminded to review and follow their internal policies. But there are indications that more needs to be done and the legal profession isn’t immune to the #MeToo movement, which has the propensity to steamroll over careers, including that of the movie mogul.

Workforces across the professional spectrum seem to have been struck by the #MeToo movement, profession by profession. And the results of a recent survey of articling students by the Law Society of Ontario is a clear indication that law firms are not immune to intolerable behaviour and have their own struggles.

The survey, in which 21 per cent of respondents indicated they had been subject to unwanted attention or harassment, provides only a glimpse. Le Barreau du Quebec is also in the throes of launching its own survey. But the message is clear: Harassment exists in all professions, including law firms, and some are seeing recent events as a call to action to step up prevention and response efforts.

“I think the culture of law firms is not so different from that of other workplaces, which is not so different from the culture in society generally. So, I wouldn’t be surprised that sexual harassment is prevalent in law firms,” says Gail Gatchalian, a Halifax employment lawyer with Pink Larkin, who chairs the Canadian Bar Association’s national labour and employment law section and is active in the women lawyers’ forum.

Through her experience as legal counsel for unions, Gatchalian believes personal harassment is relatively common in workplaces and she suspects that because of its power imbalances that harassment and bullying are just as pervasive in the legal industry.

The Ontario survey offers just a glimpse. She would like to see a deeper dive into the issue to get a better picture of how prevalent harassment is in law firms. The Federation of Law Societies’ code of conduct prohibits any type of harassment with any individual. As places of work, law firms are covered by human rights legislation requiring them to have a policy in place that addresses sexual harassment and sets out a complaint investigation procedure.

But if all law firms do have policies and procedures in place, Gatchalian questions whether they’re well known to those in the workplace and whether they’re ever accessed.
“It’s one thing to have a policy with a complaint investigation mechanism, but if it’s not being used, because there’s a culture of silence, which flows from huge power imbalances in law firms, then you actually also need to change the culture. I’ve been pushing for workplaces and law firms to actually implement bystander training for all levels of the organization,” she says.

In the wake of Canada’s own series of Weinstein moments involving sexual harassment and sexual violence in the workplace that weren’t handled well — the CBC/Jian Ghomeshi scandal and issues revealed in the Canadian Armed Forces, the RCMP and the Canadian Olympic Committee — the CBA launched a podcast Not Just a Bystander in March 2017 to highlight the legal principal that applies to harassment in the workplace.

That was a follow-up to the CBA national lawyers’ forum campaign, Write Your Wrong, which invited lawyers and articling students to write anonymously about their experience with sexual harassment in the workplace.

And law societies in every province have adopted their own approach including the assigning of an ombudsperson and implementing a discrimination and harassment counsel, members’ assistance programs and mentoring programs where issues can be raised.

In Ontario, the survey of articling students raised alarm bells, prompting the law society to take further action. “You can always do more. Saying we have done enough is unacceptable. You have to be proactive. One of the things we did when we got the results of this survey was to take a look at all things we are doing,” says treasurer Paul Schabas, a Toronto partner with Blake Cassels & Graydon LLP. “But we need to do more, we need to reach out more to firms to raise awareness of the problem” to prevent abuse from happening, he says.

Schabas is keen on sending out the message to the legal community that there are services available to those who have been wronged and that lawyers and law firms need to be proactive in preventing harassment and have a process in place to deal with it should it occur.

“I think many law firms and many lawyers appreciate if they’re not addressing these issues today, 2018, then they’re going to suffer. They’re going to suffer in recruiting the best and the brightest, they’re going to suffer in retaining people and they’re going to suffer reputationally,” he says. “Those are big incentives to ensure we address these things properly.”

Surrey, B.C. employment lawyer Sara Forte with Forte Law, who advises law firms and lawyers, suggests the best approach is to be proactive by creating a policy that provides a process for 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.

Training will also help to create a culture where harassment is not acceptable and people feel comfortable bringing issues forward. “Sexual harassment complaints are good for your business,” she says. “If you get a complaint brought forward to you internally, you can deal with it confidentially.” A law firm can sustain a great deal of harm without that culture in place and ability to manage it internally.

Forte points to a December 2016 discipline decision in which a lawyer’s sexually charged comments, often couched in humour, resulted in his diminished standing in the community, erased the possibility of him ever becoming a Queen’s counsel, obliterated any political ambition he may have harboured and had a direct financial impact on his practice.

Meanwhile the complainants — a law student who sought no compensation or a formal apology along with a paralegal in training — were made to feel diminished in their workplace where they were regularly subject to unwanted comments. They struggled with trying to rectify the situation to prevent others from having to feel diminished and vulnerable in the same way and risking the careers they had only just begun.

In this cautionary tale, the Law Society of British Columbia hearing panel wrote: “The taboo is workplace sexual harassment committed by a person with power in the employment relationship who has come to the fate of public shame, family anguish, financial cost and professional discipline. The tale is enlivened by complainant courage and respondent contrition, cooperation and personal awareness.”

Exercising the rights you know you have can be a complicated internal struggle for an individual, says Doron Gold, a former practising lawyer who is now a social worker and staff clinician at Homewood Health in Toronto who works with lawyers and law students through the Law Society of Ontario’s member assistance program. The stress, protracted proceedings, the prospect of being labelled, having their reputation sullied and being seen as a troublemaker may prompt an individual being harassed to seek less effective approaches.

“Can you imagine a young woman who’s six months from her call who’s being harassed at work, she could think: ‘This is wrong, this is unlawful and I will remedy it.’ But she can also think: ‘Maybe I need to go along to get along because I want my career. What if I’m known as the one who sued for harassment; will other people hire me?’” says Gold. “‘I believe in advocating for oneself, I believe in standing up for what’s right, I believe in protecting’ . . .  but sometimes the most protective thing you can do is not fight.”

Some may simply find a less hostile workplace because although they know they are not in the wrong, they might not feel equipped to change the system and expose themselves to a protracted legal battle. To make an accusation takes a certain amount of courage that not everyone possesses. The #MeToo movement changed that to a degree by allowing individuals to come together so they weren’t alone and perhaps not so exposed in their accusations.

“There is still an entrenched, historical power structure and culture that exists that is macho and sometimes confrontational, sometimes even bordering on abusive in terms of the way senior lawyers would treat their subordinates,” says Gold. “It’s still sort of a socially Darwinistic, cream-rises-to-the-top, you-can’t-take-the-heat-get-out-of-the-kitchen [mentality]. I think [it] is a masculine construct. If the profession is built on that kind of an underpinning, women are behind the eight ball from the beginning. So, the only way to really make it better for women is to change the construct.”

He sees some changes in how the legal profession, so entrenched in its traditions, is dealing more openly with mental health, but he describes it as an oil tanker: turning, but turning very slowly.

Resources for lawyers

CBA
Not Just a Bystander podcast https://www.cba.org/Sections/Women-Lawyers/Resources/Resources/Not-just-a-bystander

B.C.
The Equity Ombudsperson assists with resolving concerns about discrimination and discriminatory harassment. https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/lawyer-wellness-personal-support/equity-ombudsperson/

Ontario
Discrimination and Harassment Counsel – offers advice, support, resources, expertise for free. http://www.dhcounsel.on.ca/en-ca
Members’ assistance program — the law society-funded lawyer assistance program. https://www.lsuc.on.ca/map/

Alberta
The Office of the Equity Ombudsperson provides confidential advice, information and assistance to lawyers, articling students and support staff working in the legal profession on issues of discrimination or harassment by lawyers. https://www.lawsociety.ab.ca/lawyers-and-students/equity-ombudsperson/

Manitoba
The Law Society of Manitoba has an equity officer who provides confidential information, advice and assistance to Manitoba lawyers, articling students, legal support staff and clients of lawyers in dealing with issues of discrimination and harassment. http://www.lawsociety.mb.ca/equity/equity-officer/about-the-equity-officer