Important American Bar Association articles relevant to a changing society
New bar association toolkits help legal profession confront harassment, gender bias
By Robert J. Derocher
Resources are key in the research, discussions and learning opportunities surrounding sexual harassment, sexual assault and gender bias issues that confront the legal profession.
On the national level, the ABA Commission on Women in the Profession has developed the Zero Tolerance Toolkit, featuring resources that include slides, written material, potential scenarios and information on speakers and panelists designed to further discussion.
The centerpiece is a new manual, Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession, published this year as a comprehensive update to previous information provided by the commission.
“It’s a real resource for any group,” says Pamela Roberts, a past commission chair who assisted with the update. “It can be used by committees, for programming at annual conference, and as training by law firms.”
The Florida Bar expects a similar toolkit to be available to its members later this year, with plans to have it available on the Bar’s website so it can be easily accessed, according to Bar President Michelle Suskauer.
“This is not something that we just slapped together. Bars need to make this a priority,” Suskauer says. “The hope is that law firms and organizations must have this. It’s not only the right thing to do, it’s the smart thing to do.”
As women lawyers across the country say #MeToo, bar associations play an important role
By Robert J. Derocher
People who had been subjected to their advances and reported the issues were no longer employed there and these men were. Is there anything more to be said?
[Being propositioned] created emotional, financial and professional turmoil in my life which continues … I hope that this survey demonstrates how much even lawyers feel hopeless and incapable of standing up to sexual harassment in a law firm.
The firm had a history of ousting women who reported issues. He was a practice group co-leader at the point. We were junior associates. We preferred to stay employed.
—Respondent comments from Survey of Workplace Conduct and Behaviors in Law Firms, Lauren Stiller Rikleen, for the Women’s Bar Association of Massachusetts, 2018.
The unsolicited emails started showing up in Kathleen Trandahl’s box just weeks after the #MeToo sexual harassment movement had become a daily part of the national conversation last fall. For Trandahl, a retired South Dakota circuit court judge, the accounts of sexual harassment and assault detailed in the emails were “shocking.”
“They were from women that I knew, about some things that happened 10 or 15 years ago when they were interning, and what had happened at the [state] bar convention in June that was inappropriate,” she says. “They said, ‘I’ve never shared this story before, but this is what happened to me.’”
The emails, along with conversations with other women lawyers and judges in South Dakota, led Trandahl, as co-chair of the State Bar of South Dakota’s Strategic Planning Committee, to push to include questions about member experiences with sexual harassment and assault in an already-planned state bar survey. While the survey’s full results have yet to be released, a preliminary analysis confirms what Trandahl and other women suspected all along: Sexual harassment and assault are persistent problems in the South Dakota legal community.
“To have this in the profession is just jaw-dropping,” says Trandahl, noting that the South Dakota legal community and the legal profession in general are not immune to the problems exposed by #MeToo. “We have to set up some mechanisms so that we not only have safe reporting, but advocacy and support.”
With plans to build off its survey findings, South Dakota is joining special-focus, state and local bars across the country—as well as the American Bar Association—in addressing sexual harassment and assault in the profession. Many are using surveys, webinars, toolkits, roundtables and other methods to harness the publicity momentum of #MeToo to generate meaningful discussion. The aim is not only to address the sexual harassment and assault problems in the profession, but also to find solutions to other long-standing issues related to gender bias.
The time is now
“If we’re ever going to make change, it’s now,” says Michelle Suskauer, president of The Florida Bar. “This is really the first time, because of the national conversation, that we’re really going to move the needle forward. So many people are propelling this forward.”
Suskauer needs to look only as far as her own experiences in more than 25 years as a lawyer to know that the needle moves slowly. At the start of her career, she was sometimes mistaken as an interpreter. Just two years ago, she was asked if she was a court reporter. And more recently, she recalls, she appeared in a traffic court where a male hearing officer looked at her and said, “I’m not ready for you. Have a seat, babe.”
Those experiences — shared by so many other women colleagues — she says, are fuel for the multi-pronged approach taken by The Florida Bar, even before #MeToo. Spurred on by surveys conducted in 2015 by the Bar’s Young Lawyers Division and in 2016 by the Bar’s Special Committee on Gender Bias, the Bar is in the final stages of developing a Gender Bias Toolkit, along with the creation of a “Blue Ribbon” award designed to recognize firms and other legal employers that have made substantial efforts to hire, retain and promote women lawyers.
The 2016 survey, along with Bar member reaction, Suskauer says, illustrated just what women legal professionals face: One of every seven women questioned reported at least one incident of bullying and sexual harassment within the two years immediately prior to the survey.
“When I first gave that number and I was speaking to men [lawyers], they said, ‘Wow, that’s significant,’” she notes. “When I gave the same number to women, they said, ‘Wow, that’s low. It’s underreported.’”
The importance of numbers
Surveys, says Meredith Ainbinder, president of the Women’s Bar Association of Massachusetts (WBA), provide important barometers of both progress and challenges—part of the reason why, in the wake of #MeToo, the bar sponsored the Survey of Workplace Conduct and Behaviors in Law Firms to gauge the extent of sexual harassment in the Massachusetts legal community.
Providing some concrete numbers, along with confidential experiences from dozens of women across the state, she says, brought out into the open “stuff we’ve been talking about for years. People need to feel like someone is standing up for them.”
The survey and subsequent report with recommendations was developed and written by Lauren Stiller Rikleen, president of the Rikleen Institute for Strategic Leadership and author of several books focused on women in the workplace. Among the findings in the survey of about 1,000 women and 200 men, conducted earlier this year:
- Nearly 38 percent of respondents said that they had been the recipient of, or copied on, an unwelcome email, text, or instant message of a personal or sexual nature at work. Of those, more than 66 percent said that they did not report the incident.
- More than 21 percent stated that they had been the recipient of or witnessed unwelcome physical contact at work.
- Nearly 40 percent did not know if their firm had a policy for reporting sexual harassment, while another 13 percent said their firm had no policy at all.
As a veteran lawyer, former firm equity partner and the current co-chair of the ABA Women’s Caucus, Rikleen has seen and chronicled her share of gender bias, sexual harassment and sexual assault in the profession. Still, she says, the survey findings underscore the lasting and pervasive problems—particularly in the failure to report and take action.
“That’s worrisome on every level. People are enduring conduct and behavior they shouldn’t have to endure, and it means the workplace never changes because no one is demanding change,” she explains. “It means doing a better job communicating at all levels of the process.”
And as Ainbinder and the WBA had hoped, the report—complete with first-person anecdotes of sexual harassment and assault—is generating conversation in the profession.
The Boston Larger Law Firm Managing Partner Group, representing the 16 largest law firms in Massachusetts, issued this statement after the report’s release: “It is clear from the survey that much work needs to be done and we are committed to addressing these issues together¯and in our own firms¯to ensure that we are providing workplace cultures where negative behaviors are not tolerated and where people can work in a safe and respectful environment.”
In Iowa, the Iowa State Bar Association posed a single question to members, post-#MeToo: “In the past five years, have you experienced or witnessed behavior that you felt demonstrated harassment or discrimination on the basis of gender, or other forms of gender bias, in the practice of law?”
The startling result: 84 percent of women respondents answered “Yes,” as did 34 percent of male respondents. That prompted an open letter to members from bar President Stephen Eckley, telling them, “We need to do better.”
Eckley says bridging the chasm between how men and women attorneys view sexual harassment requires education and discussion among all members. “We have to continue the discussion that has now been started,” he says. “We have to keep things front and center.”
‘It’s a leadership issue’
While Eckley says the discussion surrounding sexual harassment and assault might be uncomfortable for bar members everywhere, #MeToo has now become the kick-start for what he and other bar leaders view as necessary conversations on these issues.
“[Bar associations] don’t just have a role to play—they have a responsibility,” Ainbinder says. “We are the people who represent lawyers.”
Getting some of those conversations started was the aim of the State Bar of Arizona, the Arizona Supreme Court and the ABA, which collaborated to create a 75-minute program, Sexual Harassment: Changing the Conversations, according to Lisa Deane, the Arizona bar’s chief membership services officer. The web-broadcast program, conducted earlier this year, attracted more than 550 registrants from across the country.
“It’s a leadership issue: Bar associations need to take responsibility for changing the culture,” Deane says. “We said, ‘Let’s have a discussion and let’s talk about the culture we want to create so that sexual harassment is not permeating your workplace. How can we have the tough conversations about changing the culture?’”
Longtime attorney and bar leader Pamela Roberts says that state and local bar leadership can quickly get out in front on the issue by passing a resolution that condemns sexual harassment and assault and pledges bar action.
“It can draw the attention of the legal community,” says Roberts, a former chair of the ABA Commission on Women in the Profession and an active promoter of the ABA’s Zero Tolerance Toolkit(see “New bar association toolkits help legal profession confront harassment, gender bias,” also in this issue). “This is going to be an ongoing process. It’s not going to be a case of one CLE and everybody gets it.”
Suskauer, Trandahl and others say they are happy to see conversations happening, with the idea that bar associations will be at the forefront of providing educational and conversational opportunities that members can take back to their firms, practices and offices.
“I think it just tees it up and makes it ready for us to move forward,” Trandahl says. “Keeping silent has only continued the problem.”