Charlotte Adelman is a retired attorney who first joined the bar in 1963 and practiced for 30 years. She served as president of the Women’s Bar Association of Illinois in 1984-1985 and serves as the organization’s historian. She writes in response to the Sept. 21 letter from 2nd District Appellate Justice Mary Seminara Schostok, “Time to push back against ‘boys will be boys.’”
Recently, I received a local lawyer e-mail chain stating, “For those of you who haven’t seen this, here is a great letter” published by the Law Bulletin. Written by Justice Schostok, it dramatized the one-year anniversary of the Oct. 15, 2017 #MeToo rise and was informed by the writer’s legal lifetime of putting up with male lawyers’ offensive comments, plus two recent life-changing incidents, to which she made no response.
One was overhearing a male lawyer say something “extremely offensive and sexist” about the writer to his friend, which caused “complete and utter shock.” Another was a male lawyer’s “inappropriate behavior” which offended Schostok but not a female attorney friend who commented, it’s “just him. He’s our comic relief,” to which the writer replied, “No. He is not your comic relief, he is your worst nightmare!”
“What will it take for this to stop?” Schostok asked. “I will tell you exactly what it will take. It will take all of us to stand up and say ‘enough is enough.’ When someone makes an inappropriate comment, we must say, ‘that’s not nice’ or ‘that’s inappropriate’ or ‘please don’t talk like that in front of me’ without fear of being fired or blackballed,” she answered. “Please learn from my mistakes.” Don’t “wait until you’re 60.” We must “all act immediately upon hearing offensive comments from here on out.”
I joined this intriguing lawyer e-mail chain, writing, “Hello all, I don’t agree this is a ‘great letter.’ This is an unsatisfying letter. This letter is based on so little information about what occurred that it cannot be used as the basis for informed or intelligent comment.”
A female lawyer correspondent replied, “I agree wholeheartedly with Charlotte’s assessment. Omitting that crucial information somehow dilutes the strength of the underlying message and its urgency as it pertains to encouraging women to speak out.”
Another female lawyer correspondent disagreed. “The salacious details are unimportant. … This isn’t a case where she is trying to prove sexual harassment. I’m sure each of us can fill in words that have been said in our presence and made us uncomfortable. Charlotte’s letter … reminded me of the old white men (and some women) who constantly hold women to a ‘prove it beyond a reasonable doubt’ standard.”
The first correspondent answered, “Although I support the [writer’s] call to all women to speak up and believe my agreement with Charlotte did not suggest the [writer’s] challenge to us all is not meaningful and appropriate, I believe when we cannot say what was done or said to us, we are perpetuating the fear and difficulty of speaking truth to power. That is what the males who engage in sexual harassment and sexual assault are counting on.”
She added, “Maybe we must also respect that some women and girls (and men and boys who have been abused) are fearful and are either in danger of suffering repercussions or believe they are in danger. It is all so very complicated.”
Like an infectious disease that humanity cannot eradicate, sexual harassment persists. As noted by Lara Bazelon in The Atlantic, women must avoid being seen as “too ‘soft’ or too ‘strident,’ too ‘aggressive’ or ‘not aggressive enough.’”
She references the well-known “double standard and double bind” that remains a reality in “a host of white-collar industries from Wall Street to Silicon Valley.”
This goes way back. In 1934, a woman lawyer, Miss Nellie Carlin, wrote about aggressive Illinois women “who declared for equal suffrage” being subjected to “antagonisms and ridicule.”
And, in 1938, Grace H. Harte’s Chicago Daily Law Bulletin column described Illinois men who believed that soft women required protection from “the corrupting ordeal of being locked up with male jurors while deliberating on verdicts” (See “WBAI — The First 75 Years,” Pages 12 and 29).
“What makes the issue especially vexing are the sources of the bias — judges, senior attorneys, juries and even the clients themselves,” writes Ms. Bazelon. “Sexism infects every kind of courtroom encounter, from pretrial motions to closing arguments — a glum ubiquity that makes clear how difficult it will be to eradicate gender bias not just from the practice of law, but from society as a whole.”
Compared to the progress made by Illinois women lawyers since 1918, when women were legally forbidden to vote and sit on juries, observers are amazed that women lawyers continue to experience sexual harassment in 2018. After all, approximately 50 percent of law students nationwide have been women, and law firms have recruited women entry-level associates in proportion to their representation among law school graduates.
And although female lawyers comprise only 20 percent of law firm equity partners, this is up 5 percent from 2006 and although median woman equity partners earn only 94 percent of what the median male equity partners make, this is up from 2012 when it was 90 percent and up from 2007 when it was 86 percent.
Despite slow but steady incremental gains, the National Association of Women Lawyers concludes, “one of the most pernicious hurdles to achieving a satisfying legal career is the unfortunate and continuing problem of sexual harassment.”
Recommendations for stopping “sexual harassment” of women lawyers range widely, in part because researchers, lawyers, scholars and policymakers find the term difficult to define, as different women have different perceptions of sexual harassment. Different agencies like the Equal Employment Opportunity Commission and the Illinois Sexual Harassment & Discrimination Helpline have different definitions and female lawyers’ legal environments are not monolithic but vary widely.
The tactic of having every young female lawyer ad hoc challenging every individual male lawyer acting or speaking inappropriately is inadequate to change the systemic problem.
Important as it is for young women lawyers to draw attention to sexist wrongs, it is equally important to distinguish the wrongs that are worth a fight from the less significant wrongs that can (and often should) be ignored, especially because our society values conflict avoidance.
Safety is another important consideration. A male lawyer whose very conduct demonstrates inadequate socialization might retaliate intemperately if he perceives a remonstration as threatening.
So before acting “immediately,” a young woman lawyer is well advised to take the time to evaluate each individual situation in terms of its specific context and, before speaking, routinely stop and think and apply common sense.
An unintended consequence of the one-size-fits-all guideline for immediately speaking out is pressure on young female lawyers who choose not to for any number of reasons, including compassion for some pathetic male offender, because as the insightful e-mail chain correspondent observed, “It is all so very complicated.”
And here’s a reality check. Before “immediately” refuting an “inappropriate comment” by saying, “that’s not nice,” without fear of “being fired or blackballed,” young female lawyers should keep in mind, just in case they do get fired, not to expect the writer to provide them with monetary assistance as they look for another job.
“Or you can remain silent,” wrote attorney and career counsel Erin Cowling. “This is what I chose, so I don’t judge anyone who does the same. Now that I’m more secure in my career, it’s easier for me to say, ‘Speak up.’ Can I really tell an articling student or a first-year associate that she must report and be upset if she doesn’t? I can’t.”
A third suggestion made implicitly by one of the e-mail correspondents is overruling In re Winship, 397 U.S. 358 (1970), the United States Supreme Court decision explicitly holding that “the Due Process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.”
Even contemplating this is one of my “worst nightmares.”
Here is my suggestion: Female lawyers should take advantage of the plethora of deeply researched and considered reports and proposals for change inspired by the #MeToo movement regarding the broad range of behaviors that constitute sexual harassment and its tolerance as a normal function of the law business, part of the competitive, bottom line-driven, successful institutional legal landscape.
Issues range from individuals’ and legal employers’ needs to know about and implement effective policies and practices that can help eliminate it, to the challenge of crafting a remedy for women who have been sexually harassed.
One resource is Resolution 302, adopted on Feb. 5 by the ABA’s House of Delegates at its first meeting since the #MeToo movement gained steam in October 2017 after revelations of sexual harassment in the workplace. “One of the most pernicious hurdles to achieving a satisfying legal career is the unfortunate and continuing problem of sexual harassment,” notes the ABA.
Another resource is the study undertaken between Feb. 5 and April 2 by the Women’s Bar Association of Massachusetts in partnership with the Rikleen Institute for Strategic leadership, in the wake of the #MeToo movement and the enormous focus on workplace behaviors that profoundly impact careers, which identifies steps that have been taken to address behaviors of concern and offers recommendations to help law firms provide a safe, respectful and inclusive workplace for all employees.
A third resource is the June report prepared and written for the ABA’s Commission on Women in the Profession and the Minority Corporate Counsel Association by the Center for Worklife Law at the University of California, Hastings College of the Law entitled “You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession.” That report surveyed respondents about gender and racial bias, including a series of questions about sexual harassment. Based on new research confirming that many of the traditional diversity tools we have relied upon over the years have been ineffective, it offers two cutting-edge toolkits, one for law firms, one for in-house departments, with bias interrupters that are small, simple, and incremental steps that tweak basic business systems and yet produce measurable change, and change the systems, not people.
It is time-consuming, but women lawyers of all ages, their organizations and committees should seize the opportunity to evaluate the unexpected bounty of tools that recently became available on the web, modify them for law practices other than large law firms, compare them to sexual harassment studies done for other professions, and initiate further studies and research to advance understanding of this phenomenon and provide accurate definitions and practical solutions to help women lawyers who practice in all areas of the law.
Keeping matters in perspective is also important. As NAWL stated, “And as challenging as the picture may continue to look for women in law firms, for other diverse groups such as people of color, LGBTQ, and people with disabilities, it’s a steeper uphill battle still.”
Reviewing insights from luminaries is also rewarding. Judge Judith S. Kaye’s 2008 Fordham Law Review essay, “The Progress of Women Lawyers
at Big Firms: Steadied or Simply Studied?” commented, “I continue to believe that the progress of women in the legal profession is not a natural phenomenon, like erosion or accretion. It doesn’t just happen.” And she noted, “Gender stereotypes are famously resilient.”
Also worth considering is in addition to focusing on changing a law profession that remains sexist, the legal profession (including male and female lawyers) should broaden the goal to emphasize the implementation of America’s core founding values for everyone. As advised in 2015 by Sally Yates, former acting attorney general, “So stand up. Speak out. Our county needs all of us to raise our collective voices in support of our democratic ideals and institutions. That is what we stand for. That is who we are. And with a shared commitment to our founding principles, that is who we will remain.”