Change Is Happening

In the legal profession, a number of crucial steps took place in 2018 for bringing the problem of sexual harassment into the open and giving all members of the profession the tools needed for eliminating sexual harassment in the workplace.

The American Bar Association (ABA) has taken a leading role. At the ABA Annual Meeting in Chicago in August 2018, the House of Delegates unanimously passed the Commission on Women in the Profession’s Resolution 300, urging legal employers not to require arbitration in cases of sexual harassment. [https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/2018_am_300.pdf] At the February 2018 ABA Midyear Meeting in Vancouver, British Columbia, the House of Delegates unanimously passed the Commission’s Resolution 302, which lays out the policies and procedures needed for all employers to eliminate sexual harassment in the workplace. [https://www.americanbar.org/content/dam/aba/events/women/2018_mm_302.pdf]

Both of these resolutions highlight ways to eliminate the most common forms of sexual harassment: “quid pro quo” harassment, involving sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature; and harassment based on sexual advances, requests or conduct that creates an intimidating, hostile, or sexually offensive work environment. They also speak to the intersectionality of gender and race, the combined effects of racial discrimination and gender discrimination on the advancement of women—a phenomenon that deserves more recognition and focus than it has received.

Happily, the ABA is not the only organization that has taken strong actions. There are meaningful proposals to amend the Congressional Accountability Act of 1995, to reform procedures for the initiation, investigation, and resolution of sexual harassment claims by congressional employees. The amended legislation will hopefully become law by the time this issue of Perspectives is published. Many states—including New York, California, Massachusetts, Maryland, Minnesota, Delaware, Tennessee, and Louisiana—have strengthened the relief available to victims of sexual harassment and proposed new measures to prevent future harassment.

For example, New York has new legislation that requires state employees who have sexually harassed a colleague to reimburse the state for settlements made to plaintiffs. This same bill makes mandatory arbitration clauses in employment agreements illegal. California’s new laws step up the level of training workers receive about preventing and reporting sexual harassment. California also now prohibits public and private employers from entering into settlement agreements that prevent the disclosure of information regarding workplace sexual harassment, sex discrimination, and retaliation for reporting sexual harassment, among other provisions.

But there is more affecting change in the legal profession than new laws. Businesses are responding to the pressure of organizations and groups that are speaking out against sexual harassment in ways that the profession has not seen before. A prominent example took place in November 2018, when the Harvard Women’s Law Association (WLA) took issue with the use of a mandatory arbitration requirement for associates, summer associates, and others employed by Kirkland & Ellis LLP and urged law students not to interview at the firm. Less than a month later, the firm eliminated mandatory arbitration for associates and summer associates—a policy change that may be the precursor of change in other firms. The message I take from the Harvard WLA is that even a small number of people can take a principled action that makes for a big change.

Change, of course, is a complicated process, happening in bits and pieces, and fits and starts—but it will happen, and each of us can play a role.

My best wishes to each of you for a happy and healthy 2019!