Tuesday, April 2, 2019
Ashley Badesch, Lady Justice: The Ethical Considerations and Impacts of Gender Bias and Sexual Harassment in the Legal Profession on Equal Access to Justice for Women, 31 Georgetown J. Law & Ethics 497 (2018) [Westlaw link only]
Over twenty-five years ago, the American Bar Association (ABA) adopted a recommendation resolving to take action on the problem of sexual harassment in the workplace and legal profession. The report, compiled by the ABA Commission on Women in the Profession, was released in the wake of Anita Hill's testimony during the Supreme Court confirmation hearings for Justice Clarence Thomas. These hearings sparked public debate about sexual harassment as a “matter of national concern” for the first time. Failed attempts to adopt an anti-bias amendment to the Model Rules of Professional Conduct punctuated the following two decades of limited progress in reducing issues of gender bias and sexual harassment. Then in August of 2016 advocates for efforts to increase inclusivity and prevent bias and discrimination in the practice of law toward women, minorities, and other groups garnered long-awaited progress with the American Bar Association's August 2016 adoption of Model Rule 8.4(g).Model Rule 8.4(g) makes it professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Comment  expounds upon *498 the meaning of discrimination and harassment within the rule, indicating that “discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others,” while “harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct ... [such as] unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.” The rule's comments point to substantive discrimination and harassment law as a guide for applying Rule 8.4(g) in the disciplinary context.States are currently considering whether to adopt 8.4(g) against a backdrop of unprecedented national media attention on sexual harassment in the workplace. In October of 2017, the New York Times broke an explosive story detailing decades of allegations of sexual harassment and assault against the powerful Hollywood producer Harvey Weinstein,igniting the viral “#MeToo” hashtag that took social media by storm. The ensuing flood of accusations against famous and powerful men across industries has brought the issue of sexual harassment under greater national scrutiny than ever before. Initial skepticism as to the significance and staying power of the “#MeToo moment” has been answered with a daily news cycle in which prominent figures are losing their careers and credibility within the media, entertainment industry, and political world as a result of allegations of misconduct. Whether this becomes a true watershed moment in our culture depends upon how the shifting understanding of what constitutes sexual harassment and how it should be addressed becomes codified into workplace codes of conduct, corporate governance, and the law.