As a result of the national conversation around #MeToo and #TimesUp, the legal industry is finally starting to engage in the long overdue discussion about sexual harassment within our own profession. Just last week, the Women’s Bar Association of Massachusetts announced the results of its groundbreaking survey on workplace conduct and behaviors in law firms.
The survey found that 40% of individuals had been present when comments were made that were sexual in nature or disparaging of other people or groups at their law firm. 28% of individuals responded yes to being asked if they were ever made to feel that they needed to engage in sexual behavior or develop a personal relationship with someone at work to advance in their career.
Many of the experiences described by the respondents were perpetrated by individuals with important roles within their firms. As a result, the majority of respondents did not report negative behaviors because they feared retribution or because the people they would report to were themselves involved in the incidents described.
Unfortunately, the problem of discrimination in our profession is not limited to harassment. Just this week, a partner accused opposing counsel of getting pregnant in an attempt to delay trial proceedings. According to the court transcript, the attorney compared her pregnancy to an illness, minimized her role as lead counsel and suggested that the got pregnant to delay the proceedings. Fortunately, the court disagreed, stating, “I don’t believe [the attorney] got pregnant in response to this case. I do believe that [the attorney] is entitled to have some time for her to deliver her child and take care of her child before coming back to resume her duties as an attorney.”
Sadly, this type of discriminatory conduct is not limited to law firms or the private bar. At least 15 women came forward this year to accuse former Ninth Circuit Judge Alex Kozinski of harassing behavior when they clerked or otherwise worked for him, or when they clerked for another Ninth Circuit judge. One woman said that Kozinski pulled up pornography on a computer in his chambers and asked if it aroused her. Another accuser spoke of him looking “her body up and down ‘in a less-than-professional way.’” Another reported about his fixation on the idea that she should exercise naked. Judge Kozinski abruptly stepped down in December, which ended the ongoing investigation into his behavior.
And just this past weekend, Judge Richard George Kopf, a current Senior United States District Judge of the United States District Court for the District of Nebraska, went on a “twitter rampage” after the announcement that a brave group of current and former female law clerks launched a group, Clerks for Change, to address sexual harassment in the federal courts and issued a groundbreaking report: ‘Response to the Federal Judiciary Workplace Conduct Working Group’s Report.’
Judge Kopf compared the launch of this group to the “New Spanish Inquisition” and went on to say: “Thank goodness for Article III,” invoking the benefits of life-long tenure to evade accountability for sexual harassment in the federal courts. But it gets worse. He proceeded to tweet that the women seeking reforms are “uninformed busybodies who should largely be ignored” & “scar[y]” “true believers.” Lets take a step back. A current sitting federal judge was on twitter this weekend calling a group of professional women, made up of former Supreme Court clerks, high-ranking attorneys at major law firms and professors at top law schools “uninformed busybodies.”
The various exchanges that took place on twitter this weekend between women advocating for basic accountability in their workplaces and Judge Kopf put into stark reality how overdue the judiciary was for these conversations—and how important the work of Clerks For Change is, and will continue to be.
And by the way, this is the same judge who wrote an article entitled “On being a dirty old man and how young women lawyers dress” on his blog, “Hercules and the Umpire” in 2014. The judge, in describing a female lawyer who frequented the courthouse, wrote: “she is brilliant, she writes well, she speaks eloquently, she is zealous but not overly so, she is always prepared, she treats others, including her opponents, with civility and respect, she wears very short skirts and shows lots of her ample chest. I especially appreciate the last two attributes.” The piece ended with a not so subtle message to female attorneys reading the federal judge’s blog: “Men are both pigs and prudes. Get over it.”
So yes, our profession, in both the private bar and in our courts, has a #TimesUp problem that needs to be seriously addressed. But there is reason to be hopeful. Justice McCormack of the Michigan Supreme Court tweeted her support for Clerks for Change and thanked the group “for caring enough about our system of justice to make it stronger. We are not immune from the problems facing every other industry/system/organization. But we should care about improving perhaps most of all: we uphold the rules.” As the country continues to engage in important conversations about women’s safety and dignity in the workplace, lawyers must look inward at our own profession.
This weekend’s twitter display of a federal judge openly berating women who were calling on basic reforms showed us, yet again, that our profession is not immune from these issues. It is time to embrace these conversations and to seriously consider the meaningful reforms that groups like Clerks for Change and Women’s Bar Associations across the country are pushing. After all, #TimesUp.
Roberta Kaplan, an attorney and founder of Kaplan Hecker & Fink, chairs Vice Media’s Diversity and Inclusion Board, co-founded the Times Up Legal Defense Fund and advises corporations on issues of inclusion and workplace anti-harassment procedures. Rachel Tuchman is an associate at Kaplan Hecker & Fink.
Read this at the New York Law Journal.