It is a year since Paul Philip, chief executive of the Solicitors Regulation Authority (SRA), appeared before the Women & Equalities Select Committee to account for the legal sector’s record on addressing sexual harassment at work. That somewhat testing experience for Mr Philip at the hands of MPs, led to an immediate sharpening of the SRA’s focus on how law firms respond to allegations of sexual harassment within their own businesses, as well as within those of their clients.
Up to that point, very few law
firm employees would have felt empowered to speak up about the sexual harassment they experienced, fearing they would not be believed and would face retaliation, potentially jeopardising their careers.
Even fewer would intervene or raise concerns about any sexual harassment they observed; some unsure about the dynamics of the scene playing out in front of them, others perhaps assuming it was just not their responsibility to deal with it.
Law firm HR professionals were frequently in the unenviable position of being told about an incident but being sworn to secrecy (and inaction) by the victim, who would threaten to resign and deny all knowledge. Consequently, many firms were oblivious to sexual harassment problems in their businesses, or where they were aware of particular instances, they had little legal or commercial incentive to address the issue in a truly meaningful or systematic way.
That has now all changed. The constant press attention following Weinstein and the Presidents’ Club, and the ceaseless efforts of the legal press to persuade sexual harassment victims in law firms to come forward with their stories, mean firms are far more aware of the reputational damage of mishandling sexual harassment allegations.
The stakes are raised even further by the new SRA enforcement strategy which (finally) puts sexual misconduct at a high level of seriousness, treating it on a par with other forms of serious misconduct, such as taking unfair advantage of clients, misuse of client money, dishonesty, and other criminal behaviour.
The SRA recently stated that it is investigating over 50 active cases of sexual misconduct in firms and has estimated it would be sending around 25 cases of sexual misconduct to the Solicitors Disciplinary Tribunal.
Assessing risk
Most firms have acted quickly to #MeTooLaw and have responded by updating their sexual harassment policy and complaints procedures. They have implemented firmwide information campaigns and tailored HR, partner and staff training to ensure that all understand the types of behaviour that can be regarded as sexual harassment, the consequences of engaging in such behaviours, and how the firm will normally respond.
They are putting in place rigorous controls to ensure anyone who raises a complaint about sexual harassment will not be victimised in any way.
Bystanders are being trained to call out and intervene to stop unacceptable behaviours, to distract and divert the alleged harasser from the behaviour where necessary, and to understand their responsibility to report incidents to ensure the burden is not placed on the victim to deal with the problem.
Some firms are undertaking specific risk assessments to identify and address common situations where sexual harassment is typically more likely to be alleged to have occurred – after work events, deal closing celebrations, and overseas conferences. Others are introducing policies to ensure that where a consensual relationship develops between a partner and a junior member of staff, the partner is not left in a position of power and influence over that person and their career.
A very small number have either banned or strictly controlled the use of alcohol during working hours or events, to remove one of the biggest factors in sexual harassment cases. Few have effectively addressed the long work hours culture in law firms that can be a significant contributory factor in these situations.
Questionable commentators
Many commentators say that things are different now: that behaviours which were regarded as minor and unproblematic until recently, are now deemed to be unlawful sexual harassment, potentially amounting to gross misconduct; they often find that troubling and confusing. This is questionable.
Historic cases of sexual harassment which are emerging, reveal that the complainant in those incidents always felt the conduct to which they were subjected at work, was unacceptable and unwanted; they just did not have either the language or the voice to be able to express that view safely, until now.
Firms are now investigating those current and historic allegations, instead of settling them out quietly and rehabilitating the partner with training. They are taking advice on the potential discrimination, partnership, regulatory, and criminal aspects of the allegations.
They are also becoming extremely mindful of ensuring due process and proper support for the alleged harasser, whose career, family life, mental health, and indeed liberty can be devastated by allegations of sexual harassment, whether or not they are well founded.
These situations often come down to one person’s word against another: it is important for both the victim and the alleged harasser to be heard, taken seriously, and supported throughout. Public shamings in the press make for good headlines and potentially mitigating PR for firms, but they also destroy lives, and are, in our view, rarely warranted, especially in cases with conflicting factual accounts.
And what of HR professionals in law firms? In the past they have not necessarily understood that they are personally subject to the SRA regulatory regime, including SRA notification requirements, despite
not being solicitors themselves.
But HR awareness on this issue is changing, so that HR professionals in law firms now feel fully empowered by the knowledge of the regulatory as well as the PR and criminal risks, to escalate sexual harassment concerns to senior management for effective action.
It is important for firms to recognise that what used to be seen as an HR issue, is now also a regulatory issue, so there needs to be open communications between law firm HR and GC teams, to ensure that matters that are reportable are actioned, and that prompt and effective steps are taken to address the immediate issue and ensure
long-term institutional change to eradicate sexual harassment at
work.