International law leaders echo Canadian concerns about sexual harassment, bias

Legal leaders in Australia, the United Kingdom and the United States are told the Canadian bar they are looking at legislative, regulatory and cultural changes to combat sexual harassment amid an “inflection point” in the profession.

“We are seeing a significant pushback from men, not just in the legal profession but across industries, having a higher level of discomfort working with women. Studies are coming out and showing an increasing number of men are saying they will no longer choose to mentor a young woman colleague or socialize after hours,” said Hilarie Bass, a past president of the American Bar Association, who spoke at the Ontario Bar Association’s Momentum Summit on Sept. 10.

“This could be a real problem for women’s efforts on reaching higher promotion levels. It has to be talked about within law firms. My initial reaction was, ‘How silly, the standards of behaviour have not really changed.’ But clearly male attorneys feel it may have changed . . . . to the extent that men have those concerns they are not going to articulate them, they are just going to make different decisions as to who will be on their teams.”

The Momentum Summit, an initiative shaped by OBA Past President Lynne Vicars, focused on practical solutions to advance gender equality in the legal profession.

Ontario has had its own reckoning with the #MeToo movement, which has ferreted out a number of high-profile sexual harassment issues across industries. There was a 50-per-cent uptick in the first half of 2018 in the total number of new individuals who contacted the Discrimination and Harassment Counsel for the Law Society of Ontario, the organization said in a report a year ago. Another 2018 survey found that one in five current or recent articling students who completed the survey faced “comments or conduct” based on their gender, race, sexual orientation, citizenship, disability or other personal characteristics.

President of the Ontario Bar Association Colin Stevenson, who moderated the teleconference panel, also noted the rise of political populism alongside the #MeToo movement.

Christina Blacklaws, past president at the Law Society of England and Wales, said at the summit that the profession is increasingly looking at bystander training, to get onlookers at firms to blow the whistle when harassment occurs.

“If something is happening to me, it may be very difficult for me to be able to do or say something. Somebody else who witnesses it should be the one, perhaps, to stand up,” says Blacklaws. “Really important training for our profession, sadly.”

Kate Eastman, chair of the Australian Bar Association Diversity and Inclusion Committee, said that while the country has had sexual harassment laws since the 1980s, new data collection revealed that offences have been on the rise among lawyers.

“What is about the nature of our profession — its structure and its culture — that permits this to occur? Addressing that culture won’t be done by legislation. But it can be done by a combination of stronger professional conduct standards and acting on complaints of sexual harassment,” Eastman said. “When women leave the law because of sexual harassment, they never come back.”

Pay equity is another issue facing law firms — one that has been helped by a “brilliant policy” in the UK that mandates large businesses must report their pay gap, said Blacklaws.

“What we have found that really works is to have policies in place which support equality — and public accountability for those policies,” said Blacklaws. “Particularly at roundtables we held in North America, there was a real reluctance to ever talk about compensation publicly . . . . We have had equal pay legislation since 1970, for nearly 50 years. And I can absolutely guarantee that every day, law firms break that law, maybe unconsciously.”

In Australia, a voluntary target system encouraged firms to give at least 30 per cent of briefs to women when awarding work to lawyers with one to 10 years of experience. For senior women, the goal was 20 per cent, said Eastman.

While senior women have only reached about 12 per cent of the briefs, Eastman also noted that even when the targets on numbers of briefs were met, sometimes the value of the work was uneven.

“When you have a big piece of litigation, we have an expression in Australia, and you may as well: the ‘bet the company’ barristers. So, who would you trust with the company? Inevitably, those briefs go to the senior men who have significant visibility and high reputation,” says Eastman. “[The reporting and targets] have forced the decision making away from, ‘We know him and he’s a good guy,’ to ‘Who is actually the best person for the job, and where can we find the talent in the independent referral bar?’ . . . . even though the men may have bristled a little that we were taking work away from them, practically we haven’t found that to be the case at all.”

The other panelists also acknowledged the problem of senior partners awarding work to “the people right in front of them,” which can put women working remotely at a “double whammy” disadvantage.

“You can have all the lovely policies in the world. But if people, ie men, aren’t taking parental leave, then you have got a cultural problem. They believe it’s not ok to do that,” said Blacklaws. “It’s really vital that men, particularly senior men, take ownership and responsibility for sorting out this problem of not being able to retain and promote women.”

Bass added that she’s received feedback from U.S. women who leave the profession after “20 years of perceiving that they are paid less” and not advancing, despite billing more hours than some of their counterparts.

“Women are simply choosing to walk away from the profession, and saying, ‘If I have to work this hard, I can be more successful in a true meritocracy and the legal profession does not qualify,” Bass said. “Implicit bias is something most people assume they don’t have. No one thinks they are biased in how they evaluate young lawyers. Yet study after study says the standards applied to women attorneys is different than the standard applied to men.”

Bass said that with a generation of Baby Boomers approaching retirement and handing off their clients, U.S. managing partners are looking toward succession plans to shift the power dynamics.

“Proposing that [diversity-and gender-related data] would not be disclosed, and it will simply be consolidated with other firms’ data, certainly helps. But keep in mind that data alone doesn’t tell the whole story,” Bass said. “We all know in law firms there are two factors that impact compensation: how much money you’re bringing in on your time and which clients you control. To the extent that we can alter who gets credit for controlling clients, we can create a huge shift in who the most powerful lawyers will be in the next generation.”