Tuesday, March 13, 2018
#MeToo in the Legal Profession
Anita Hill testifying at the confirmation hearing of Clarence Thomas was one of the events that shaped my life as a lawyer, a feminist, and a human being. As the country watched this intelligent, competent black woman give her testimony, I saw what it meant to speak truth to power. I understood that power would not pin laurels on you for bravery, but would instead denigrate you and spit on you and tell you to your face that your experience was a lie. I learned that action requires much more than bravery, it requires sacrifice.
I also understood, when Clarence Thomas responded that the proceedings had descended into a high-tech lynching just how heavy weight of intersectional oppression is, and how it is always deployed in the service of protecting power. What white supremacy cannot accomplish, patriarchy will.
At that time, as a young waitress, I had endured my own ration of sexual harassment. But it wasn’t until much later, until I graduated from law school and started to make my way as a young lawyer and experienced a few very sketchy, borderline moments that I think I grasped the depths of what Anita Hill was up against.
Lawyers expect our profession to provide us with a kind of shield. We are powerful, privileged people, even if we are also female or gay or a person of color or all or none of the above. Our identity as a member of the bar provides us with the ability move freely in the halls of power….until we are harassed by someone even more powerful.
The harassers within the legal profession are among the most powerful people on the planet—bar none. When you’re harassed as a lawyer, it’s often by a judge, a legislator, the partner of your firm, the CEO of the company or the big client. A person with unparalleled resources, cultural capital to burn, and ability to use the law as both a shield and a cudgel against you.
We operate in a profession where confidentiality and discretion are paramount, refusing assignments is difficult, and our reputations are our currency. Harassers use and abuse the ethical and social conventions of our profession to prevent victims from speaking out and speaking up. The result? Persistent gender-based inequality among lawyers that seems to have no discernable cause.
Much of the conversation around #MeToo starts to bleed—quite rightly in some cases—into conversation about crimes, about assault, and about a culture of violence. But sexual harassment is also fundamentally an economic issue, one that warps our profession. The cost is not just to the victims, who must figure out how to earn a living, despite the hostile environment they’re operating in. The cost is to all of us. How many of us have not applied for a job, or turned down a plum assignment because taking it would have put us into close contact with someone who either the whisper network or gut instinct said would not be safe? Avoiding sexual harassment shapes our choices, delimiting our options. The language of choice (“You chose to turn down the assignment”; “You choose the less prestigious clerkship”) masks a sick, systemic tolerance for discriminatory behavior. It’s not a leak in the pipeline, it’s the gaping hole.
The #MeToo moment is an opportunity for change, not just in the general law, but in lawyers. There are specific and concrete steps that we can take now to make our workplaces exactly that—places where we work. Where we represent our clients, or draft legislation, or decide cases. Not places where we have to think about our basic safety and security.
In February, a group of us came together to discuss concrete steps for change at #MeToo: Preventing Sexual Harassment in the Legal Workplace (February 19, 2018, American University Washington College of Law), sponsored by the Women and the Law Program at AU. I was inspired by these women and daunted by the amount of work to be done, starting with:
- Llezlie Green Coleman’s call to rethink the use of non-disclosure, confidentiality, and binding arbitration agreements in employment litigation;
- Cara Greene’s assessment that ethical obligations with teeth are needed to reinforce that our profession will not tolerate sexual harassment in any form; and
- Emily Martin’s reminder that of the need for federal legislation to create humane and effective procedures for reporting sexual harassment on the Hill, as well as her call to get involved with Time’sUp.
We also need to lead the change in our own workplaces. Because of the immense cultural and political power wielded by harassers in the legal profession, we have to pay special attention to the even wider power differential for those who work with us, but who are not also lawyers. Court reporters, paralegals, administrative assistants, law clerks, interns, interpreters, bailiffs, correctional officers. If a harasser is willing to risk harassing someone who is in any other context not afraid to sue your ass, how much more complicated is it for someone without our professional badges and power suits to shield them? We, as lawyers, have an especial obligation to the people we work with—to listen and watch and ask and to believe them when they tell us that something is making them uncomfortable—or worse. Because of the power we possess, ours is a heightened obligation to not be complicit.
In the wake of #MeToo, I’ve thought often of Anita Hill and the lessons her experience etched on us. I’m looking for ways to repay the immense debt that I, at least, owe her for speaking out when doing so meant that she walked alone. Working to end harassment in the legal profession—the context in which Clarence Thomas harassed Anita Hill, and the context in which Anita Hill fought back--is the right place to begin.