This post by Dave Curran originally appeared on Thomson Reuters’ Legal Executive Institute on April 2018.
NEW YORK — Allegations of sexual harassment and abuse surface too often in the corporate world, leaving C-suite executives, boards and lawyers struggling over how best to contend with around-the-clock media coverage, social media outrage, and evolving corporate cultures. Much of this media focus, understandably, is on victims of this horrible abuse and misconduct and the larger-than-life bad actors.
However, a deep discussion on the role that lawyers should play from a legal standpoint, and more importantly from an ethical and societal standpoint, has yet to fully develop. To help facilitate this, we convened an open, roundtable discussion last week, entitled Real World Implications of #MeToo: Transforming the Legal Ecosystem, which was hosted by Her Justice, Thomson Reuters and Wachtell, Lipton, Rosen & Katz.
Much of the purpose of this discussion was to examine the impact of the new and still-changing world order on ethics and corporate culture, as well as to ask how lawyers can adapt to rapidly changing rules of the game, intense public scrutiny, and high-profile legal, operational, and reputational challenges.
I was honored to moderate this panel and set a sort of Chatham House Rules at the outset. We wanted an open and frank discussion, and except for a couple of exceptions, we didn’t want to identify the speakers, even while focusing on their insight.
I also know that the issues brought to the surface by these high-profile incidents of sexual harassment and abuse in the workplace — highlighted and given greater voice by the #MeToo and Time’s Up social movements — are some of the most nuanced and complex issues we, as lawyers, can face. And nothing is more frustrating for a lawyer that wants to do the right thing than to talk to a client and know these issues are lurking but realize that people feel they cannot talk openly about them.
The “Power Problem” of Harassment & Abuse
My co-host for the panel, Amy Barasch, Esq., Executive Director of Her Justice, described the issue of sexual harassment and abuse in the workplace as a “power problem”, wherein the power lies with those who can make choices and negotiate options. “The powerless can become victims of violence because they are afraid to disclose what’s happening at home or work,” she said, adding that it’s important not to separate an abusive situation at home from an abusive situation at work.
Barasch also noted that everyone, not just women, have a role to play in creating safer environments at the office and beyond. “It’s vital for everyone to think about what leverage they have to solve these problems and set the standards for expectations, not just in the workplace itself, but those of outside vendors and third-parties that do business with the company,” she said.
Another roundtable participant agreed that many lawyers are looking at the benefits, including financial and reputational, of doing the right thing, rather than the knee-jerk reaction of circling the wagons around the perpetrator, especially if he’s a big rainmaker, in order to protect the firm in the short-term.
Jennifer Peterson, a Partner with the League of Allies, agreed that potential damage from being viewed as a firm that doesn’t proactively respond to pervasive workplace sexual harassment and abuse is going to hit the bottom line hard. “Hiring and retention, for example, is one area that will be impacted if a firm is thought to have high turnover trends and limited career opportunities for women,” Peterson said.
Rather, companies that have shown a better gender balance — of about 40% to 60% — demonstrate a stronger overall performance, Peterson said. Further, companies with three or more women on their board showed superior returns on equity and earnings per share than companies with no women board members.
Making this “business case” for gender balance and women in the top ranks is how we can “drive a culture of change in these institutions,” she added. Of course, the numbers show there is still a long way to go. At the 3,000 largest companies globally, just 4% have a women CEO, and less than 10% have any women as business unit heads, often viewed as the “talent pool” for the CEO position, according to statistics provided by the League of Allies.
What Can Law Firms & Lawyers Do?
The discussion soon turned to what practical changes law firms and other institutions can embrace around disclosure policies, fear of retribution, internal investigations, and ultimately, meting out of consequences to make their workplace free of harassment and abuse. “When you think about getting rid of these ancient rules and norms in the workplace that allow bad behavior to continue, the answer seems easy,” said one participant. “But often the path to getting there is very difficult amid all the political jockeying.”
Another roundtable member worried that much of what some companies are doing around issues of gender balance, diversity and sexual harassment and abuse in the workplace is “window dressing” that isn’t really going solve systemic problems. Worse yet, she said, these companies fail to grasp the depth of the change being brought to their doorstep.
“There is a revolution going on that is being driven by the younger generation of women who are unwilling to allow this behavior or these practices in the workplace,” she said, adding that to many of these young women, the law and the legal market hasn’t worked in remedying these problems.
Several other participants agreed, saying that behavior that once was tolerated in the past will no longer be, and women who are speaking up are empowering other women to do so, too. And it’s up to lawyers to be the ones to understand this and help explain it to management.
“I don’t think the board of a Fortune 500 company can afford to not do the right thing,” said one roundtable member who works in the HR department of a large company. “If they can’t see around the corner and think about their workplace culture, then they are not doing their jobs.”