By Bobbi K. Dominick

Much has been written about promoting diversity in the legal profession.[i]  Intense focus has centered around women, but the goal of diversity is to encourage, back up, and assist those with many diverse backgrounds to enter, and excel, in the legal profession.  This includes diverse backgrounds and experiences such as national origin, race, religion, disability, age, and orientation. Organizations that promote diversity and inclusion perform better, reach ameliorate results, and have increased employee engagement.[ii]  Diversity increases the bottom line of organizations.[iii]  Diverseness is an outcome worthy of our attention, for economic reasons, besides as the overall goal of improvement of the legal profession.

What are the barriers to increased diverseness within the legal profession? A recent study examining female person attrition stated this issue succinctly: "[O]ne of the most pernicious hurdles to achieving a satisfying legal career is the unfortunate and standing problem of sexual harassment."[four] This article will examine sexual harassment equally a bulwark to diversity and provide thoughts for improving diversity.

Harassment is Just One of Many Barriers to Variety in Police

Recent Advocate manufactures provide an first-class summary of statistics on female attorneys in Idaho,[v] and bias and its potential impact upon the advocacy of women in police force.[vi]  Those manufactures, and other research,[vii] signal to numerous factors contributing to women leaving the profession or not advancing to positions of greater authorisation.  Some factors may be purely personal choices on the part of individual attorneys who choose a unlike career or life path.  Only some reasons for women and minorities leaving the practise may be inside our control, and eliminating harassment every bit a barrier is one of them.

Harassment in the Legal Profession: Statistics and Surveys

A discussion of the impact of workplace harassment must start at the beginning. How prevalent is harassment in the legal profession? Statistics are sporadic and frequently hard to find, especially if we focus solely upon Idaho.

Beginning, those in protected classes are clearly underrepresented in the law, and thus ofttimes in the minority. The manufactures referenced above cite statistics about women (in Idaho, 28% of attorneys are female, nationally the number is 36%). Statistics nationally indicate a low percentage representation for attorneys with disabilities (perhaps as low as 7%),[viii] those of Hispanic origin (9.9%), Black (5.five) and Asian (4.ix).[ix] Since these groups are underrepresented does this hateful that they are more susceptible to harassment?   According to the EEOC's contempo study of workplace harassment, it does.[x]

Another important bespeak from the recent report: "[west]hen the target of harassment is both and member of a racial minority group and a adult female, the individual is more likely to experience higher rates of harassment than white women. Moreover, when the target of harassment is both a member of a racial minority group and a adult female, the individual is more probable to feel harassment than men who are members of the aforementioned racial minority group."[xi] While the research is sparse, the same is likely true of those who are members of more than one protected class.

Other states have conducted surveys to discover the prevalence of harassment.  For example, a 2005 California survey institute that 50% of female person attorneys reported experiencing sexual harassment.[xii] The Florida Bar's study found that 17% had been subjected to harassment based on their gender.[13] Utah's 2010 survey revealed that 37% of women attorneys responding had experienced verbal or concrete behavior that created an offensive work environment. Of those, 86% identified gender as the basis for the harassment.[xiv]

As you can see, there is a broad swing in the numbers.  Some of that may exist attributable to the way the word "harassment" is divers, the style survey questions are worded, or individual nuances in the responder'south understanding of harassment.  As the EEOC study noted, the numbers who reported harassment rose when the questions included gender demeaning and derogatory behavior.[15]

Despite the difficulty of interpreting these statistics and applying them to the Idaho experience, several things are certain:

  • Harassment does exist,
  • It likely exists in legal practice in Idaho, and
  • It is a bulwark to women and minorities thriving.

Harassment in the Law: What Kinds of Behaviors are Nosotros Talking About?

Harassment that doesn't involve propositions or sexual language can still form a barrier to diversity.  The EEOC has said: "harassment non involving sexual activity or linguistic communication may also requite ascension to Title VII liability…if it is 'sufficiently patterned or pervasive' and directed at employees considering of their sex."[xvi] Social science enquiry indicates that mistreatment and incivility, whether it rises to the level of illegal harassment or not, tin can lead to the same kind of impairment as harassment, and creates a bulwark to advocacy.[xvii]  Research besides tells the states that those subjected to this kind of treatment oftentimes answer past leaving the organization.[xviii]

Recent surveys and stories have detailed other types of harassment that female attorneys take been subjected to, often not even the typical sexual propositions, but rather demeaning comments and behavior.[xix]  Examples that women have shared with me, or that have appeared in manufactures or case law,  include bringing a female attorney into the courtroom as "window dressing," considering "witnesses prefer immature and pretty," or it would be skilful for "the jury to come across a pretty face." Other examples might include comments made about lipstick, clothing, body parts, makeup and hair, directed only towards women, implying a sexualized or diminished view of the person and their capabilities. Jokes about women could exist demeaning, like using #MeToo as a punchline, or comments almost women succeeding by "sleeping with the judge," implying that women cannot advance on their own merits without using gender as an advantage. Comments about women not beingness serious about their legal careers considering they want to have babies and showtime families besides fall into this category (speaking from personal feel).  Other micro-aggressions might include labeling women's behavior every bit "bitchy" or "ambitious," or cautioning against being "naïve" or "weak."

Harassment based on race, national origin, religion, disability is oftentimes this kind of "negative stereotype" harassment.  Behavior, comments, or attitudes that make a particular grade of people feel unwelcome, unappreciated, or unrecognized discourages them from remaining in a profession or system. Examples might include using pet names, interrupting or ignoring, or dismissive comments. These types of behaviors impede multifariousness and preclude the advocacy of women and minorities.

We Don't Accept a Problem, Do We?

Many legal professionals reading this commodity may think to themselves: "well, this is all theoretical, because we don't have a problem in our organization." That type of thinking is naïve at best and damaging at worst.  Research indicates that every type of profession may experience protected class harassment.[xx]

The EEOC consulted with experts and examined what types of organizations are near at risk for harassment.  Some of the gamble factors clearly utilise to legal organizations:

  • Homogenous workforce: Ironically, when an entity is made upward of primarily 1 gender (or other protected grade, that makes the arrangement more than susceptible to harassment, and the legal profession, based on the higher up statistics, clearly falls into this risk factor.
  • Workplace "norm" dependent environments: When the written or unwritten norms for how people must "comport" tend to favor the dominant class, those who exercise not meet those norms are harassed at higher rates.  This could touch on women, just also those with disabilities, different national origins, dissimilar religions, and unlike orientations.
  • Power disparity environments: A high ability or valuable asset, like a rainmaking senior partner, offers a power disparity that creates a higher take a chance of harassment.
  • Client satisfaction factors: When the environs is client dependent, there is a higher risk of harassment, because bad client behavior may be tolerated or even condoned. [xxi]

Another common misconception: "no one has complained, so it may exist happening elsewhere, but non here." Only the statistics tell a different story.  The vast majority of those who are subjected to harassing behavior practice not mutter at all. For many, the solution is to put up with the behavior, minimize the seriousness of information technology, try to ignore it, or simply to exit that environs.[xxii]  This not only damages the multifariousness of that particular organization but as well tin can be a setback to career advancement for the individual who leaves.

Fifty-fifty when someone does complain, those in a position to reply may non act.  This happens for many different reasons. Peradventure most common is that the person to whom the individual complains views the behavior from a different lens, and may not see the harmfulness of the behavior.  Other common reasons the behavior might exist ignored include the high value of the offender, the difficulty of resolving conflict in the workplace, or perceptions of the person lament (i.east., questioning motives for complaining, etc.) Another common reason is that there is no process in identify in many legal organizations (peculiarly smaller ones) to address complaints, and so leaders only don't know what to do.

Then What Do We Practise Near This? Some Suggestions

Report and Prevention

A electric current survey and study should be conducted on harassment (all protected classes) in the legal profession in Idaho.[xxiii] While we know from statistics in other professions that harassment probable exists, we need to know the types of issues we are dealing with specifically in Idaho. Our professionalism efforts should also assistance lawyers focus upon effective human resource management, including both diversity and harassment prevention.

Internal Organizational Efforts

At a minimum, each legal organization in Idaho could assess the bear on of harassment inside their organization and develop strategies for removing this diversity barrier variety. Every law firm and legal section should engage in proactive efforts to raise the level of business organization about harassment that might be occurring, and encourage attorneys to come forward with complaints.  This includes serious work on training, policies and complaint resolutions efforts.  While specific suggestions are across the scope of this article, there are many ways to find these suggestions.  Ii sources are listed in the endnote.[xxiv]

Where Do Nosotros Become From Hither?

The give-and-take higher up highlights some of the difficulties of, and potential solutions for, eliminating harassment in the police force.  While beyond the scope of this commodity, whatever serious discussion surrounding eliminating bias and harassment must also include a discussion of whether upstanding rules should accost harassment and bullying.  Many states have adopted some version of Rule of Professional Conduct viii.4, addressing the ethics of discriminatory behavior.  Idaho recently went through a process of assessing this, but subsequently the Bar (on a divided vote) concluded that the rule should be adopted, the Idaho Supreme Courtroom (on a divided vote) declined to implement the dominion and directed more study on the issue.[xxv]  Firms and entities can internally deal with harassment within their walls, but some protected class harassment is perpetrated by attorneys outside our firm/organisation.  The merely effective way to gainsay such offensive behavior, and provide accountability, maybe through ethical rules.

In improver, efforts to promote professionalism in the practice of constabulary may also be an effective deterrent to harassment, equally many studies have found that bullying and disrespect provides a convenance ground for unlawful harassment.[xxvi] It may be time to more closely examine, and heighten, our professionalism efforts to specifically accost this issue.

Bobbi 1000. Dominick has skillful in the harassment and homo resources areas for over iii decades. Her current practice at Gjording Fouser includes working with employers on prevention systems, training, complaint investigations, and serving equally an expert witness on harassment prevention response systems.

[i]  Come across, e.k., Deborah Fifty. Rhode, From Platitudes to Priorities: Diversity and Gender Equity in Law Firms, 24 Georgetown Periodical of Legal Ethics 1041 (2011); Douglas E. Brayley & Eric S. Nguyen, Good Business: A Market place-Based Argument for Constabulary House Multifariousness, 34 J. Legal Prof. 1, 4-8 (2009); Jason P. Nance & Paul East. Madsen, An Empirical Analysis of Diverseness in the Legal Profession, 47 Connecticut Law Review 271 (2014).

[two] Stefanie K. Johnson, What 11 CEOs Have Learned About Championing Multifariousness, Harvard Business Review (Baronial 29, 2017) located at https://hbr.org/2017/08/what-xi-ceos-have-learned-nigh-championing-diversity.

[iii] Id.

[iv] Stephanie Ann Scharf, The Trouble of Sexual Harassment in the Legal Profession and its Consequences (February 2018) located at https://www.scharfbanks.com/sites/default/files/assets/docs/report.pdf.

[v] Jessica R. Gunder, Women in Police: A Statistical Review of the Status of Women Attorneys in Idaho, The Advocate, (February 2019).

[half-dozen] Alison M. Nelson, Spotlight on Bias, The Advocate (February 2019).

[vii] Encounter, due east.g., Achieving Long-Term Careers for Women in Police, report pending, ABA Commission on Women in the Profession, located at https://www.americanbar.org/groups/multifariousness/women/initiatives_awards/long-term-careers-for-women/.

[8] See ABA Disability Statistics Report, 2011, ABA Commission on Mental and Physical Disability Police force, https://world wide web.americanbar.org/content/dam/aba/uncategorized/2011/20110314_aba_disability_statistics_report.pdf.

[ix] https://www.bls.gov/cps/cpsaat11.htm.

[x] U.S. Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the Workplace, EEOC (June 2016) located at https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm (EEOC Report).

[eleven] EEOC Study, at pp. 13-xiv.

[xii]  Chang and Chopra, "Where are All the Women Lawyers?" https://www.360advocacy.com/wp-content/uploads/2015/10/ChangChopraArticle-1.pdf.

[xiii] The Florida Bar, 2015 YLD Survey on Women in the Legal Profession,  https://www-media.floridabar.org/uploads/2017/04/results-of-2015-survey.pdf.

[14] Women Lawyers of Utah, The Utah Report: The Initiative on the Advancement and Retention of Women in Constabulary Firms (Oct. 2010), at http://utahwomenlawyers.org/wp-content/uploads/wlu_report_final.pdf.

[xv] EEOC Report, p. viii.

[xvi] EEOC,1990 Policy Guidance on Current Problems of Sexual Harassment, https://www.eeoc.gov/policy/docs/currentissues.html.

[xvii] Lilia Thousand. Cortina, et. al., Researching Rudeness: The Past, Present, and Future of the Science of Incivility, 22 Journal of Occupational Health Psychology 299 (2017); Sandy Lim & Lilia Chiliad. Cortina, Interpersonal Mistreatment in the Workplace: The Interface and Impact of General Incivility and Sexual Harassment, 90 Periodical of Applied Psychology 483 (2005).

[eighteen] Chelsea R. Willness, et. al, A Meta-Analysis of the Antecedents and Consequences of Workplace Sexual Harassment, 60 Personnel Psychology 127 (2007).

[xix] A proficient collection of the types of behaviors identified as problematic is included in the Florida Bar's 2016 Survey on Gender Equality in the Legal Profession, located at https://www-media.floridabar.org/uploads/2017/04/2016-Survey-on-Gender-Equality-in-the-Legal-Profession.pdf

[xx] See, e.g., Heather McLaughlin, Who's Harassed, and How? Harvard Business Review (January 31, 2018) located at https://hbr.org/2018/01/whos-harassed-and-how; Audrey Carlsen, et. al, #MeToo Brought Down 201 Powerful Men.  Well-nigh Half of Their Replacements are Women, New York Times (Oct 29, 2018) located at https://www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html.

[xxi] EEOC Report, pp. 25-28.

[xxii] Mindy Bergman, et al., The (United nations)Reasonableness of Reporting: Antecedents and Consequences of Reporting Sexual Harassment, 87(two) J. Applied Psychology 230 (2002).

[xxiii] Some studies accept been done in the past, but the author could not locate any contempo studies or surveys.  In the current #MeToo climate, such a written report would be useful in developing solutions.

[xxiv] Bobbi Yard. Dominick, Preventing Harassment in a #MeToo World, SHRM Publishing (2018)(detailing specific deportment to take in all areas of prevention); ABA Committee on Women in the Profession, Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession (2018),and ToolKit located athttps://world wide web.americanbar.org/groups/diversity/women/initiatives_awards/the-zero-tolerance-program-toolkit/zero_tolerance/; run across also EEOC Study noted above.

[xxv] Chief Justice Roger Burdick, Letter to Diane Minnich, Executive Director, ISB, dated September half-dozen, 2018.

[xxvi] Zero Tolerance, pp. 28-30. See also note xviii to a higher place for additional resources.