Just when you thought sexual harassment was as front-and-center as it could get, along comes the next Donald Trump controversy.
However, the issue was already having a bit of a moment. Remember, when Gretchen Carlson filed her lawsuit against Fox News over allegations that Roger Ailes had sexually harassed her. She likely never dreamed she would emerge victorious with a $20 million settlement within a few short weeks. Clearly, we are well down the road from those days when Anita Hill helped bring the phrase “sexual harassment” into the mainstream.
There have been many takes on this, so let me add another: Imagine if Gretchen Carlson’s lawyer was getting patted on the butt or being called “a little lady” in the courtroom whilst making her case? What if “locker room talk” was also “courtroom talk?” It’s so ludicrous that it should not even warrant consideration, right?
Or is it?
According to a recent San Francisco Chronicle, report, “… at the annual meeting of the American Bar Association (ABA), held this year in San Francisco, the House of Delegates revised the association’s Model Rules to classify sex discrimination or harassment as unprofessional conduct. The change was approved by voice vote, with only a few scattered opposition votes heard among the 589 delegates.”
The new rules mean lawyers can now be disciplined for harassment and discrimination based on sexual orientation, sex, gender identity, race and religion. Further, the rules apply to any “conduct related to the practice of law.” This latter part is important because it means disciplinary action can be brought well beyond what happens in the courtroom, including what happens within the law offices themselves.
This is welcome news for lawyers like Lori Rifkin. The NYT reports, “When Lori Rifkin asked the opposing lawyer to stop interrupting her while she questioned a potential witness, he replied: “Don’t raise your voice at me. It’s not becoming of a woman.”
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 which is why most businesses have anti-harassment policies in place. Set aside the fact that some people voted against it, the real question here is why the ABA has been so slow to incorporate harassment and discrimination as part of their professional conduct rules.
The ABA itself published a report, “First Chairs At Trial: More Women Need Seats at the Table” finding that only 17% of equity partners in big firms and 22% of general counsel in the Fortune 500 are women. In nearly every sector of trials, women were barely a footnote in number appearing as the lead attorneys. While the report tried to identify the reasons behind the industry’s failure to move women into leadership roles - and cites discrimination, nowhere in the report is the word “harassment” mentioned.
The SF Gate article goes so far as to note that New York attorney Wendi Lazar, a member of the Bar Association’s Commission on Women, said she had received complaints from female lawyers who were “asked to leave firms because they had complained about sexual harassment ... because they wouldn’t have sex with a senior partner of their firm.”
What this means is that while major law firms may be spearheading sexual harassment lawsuits on behalf of their clients, chances are good that a man is lead counsel on the case and that somewhere in that firm, a woman is being harassed.
Overall, the ABA report is solid, but it tells us the same story - granted, catered to the legal profession - that so many other similar reports suggest: Women are being held back from career advancement for a variety of reasons that have nothing to do with their intellect, work ethic or contributions. Quantifying it as a matter of record provides an industry-specific document women and their advocates can refer to when seeking professional support. But, as someone who writes regularly about legal issues, it’s been hard for me not to ponder what to tell women lawyers, or more importantly - aspiring women lawyers - about their prospects given the underrepresentation of women and overrepresentation of discrimination and harassment.
While considerably late, it is refreshing to see that the ABA is creating professional boundaries that ensure lawyers can raise their voices just the same as men – even if we will take a pass on using those voices for this so-called “locker room” talk.
(Sara Corcoran Warner is publisher of the California Courts Monitor website, "Your Daily Ration of Civil Justice Rationing," and a frequent commentator on national legal policy and civil courts issues.)