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“We are having a national conversation where lawyers, courts, law firms are coming to the table in a way and with an awareness that we have never seen before,” said Tina Tchen, a co-founder of the Time’s Up Legal Defense Fund and one of the panelists on the forum, "#MeToo, Time’s Up — Sexual Harassment in the Workplace,” held Aug. 2 during the 2018 ABA Annual Meeting in Chicago.
“Those of us who have done this work for a very long time are experiencing a national moment that I don’t think any of us ever thought would ever happen,” continued Tchen, a partner at Buckley Sandler LLP and former chief of staff to First Lady Michelle Obama. “We all believe we are at an inflection point where we can shift what is going on in our workplaces.”
The forum, moderated by ABA President Hilarie Bass, provided another opportunity to continue that national conversation on issues of gender harassment and equal treatment of women in the workplace in all industries. It’s an issue that Bass said the ABA has been “laser-focused on within the legal profession.”
The panelists talked about what is happening today in the legal profession, workplace measures that can protect victims of sexual harassment and the reaction of the legal community to the new awareness of the problem, emerging law practice areas that address employer response to harassment and the federal judiciary’s evaluation of its code of conduct and procedures for investigating inappropriate behavior.
Since Time’s Up was launched in January by Hollywood celebrities in response to the Harvey Weinstein assault and harassment allegations, the movement has raised more than $21 million and has more than 800 lawyers providing services pro bono. Tchen said they have had more than 3,200 requests for help from victims in over 60 different industries, including government workers, teachers, first responders and low-wage fast-food workers.
“This is a moment unlike any other we’ve ever seen,” she said, but added a word of caution. “It would be a mistake to focus on this issue as just sexual harassment and deal with that alone. What we are really talking about is building workplace cultures that are very diverse and very inclusive in every sense of the word. And that we are equipping managers and workers at law firms how to treat each other better in order to change the way workplaces operate.”
Changing the workplace culture is the goal of the San Francisco-based Ninth Circuit Workplace Environment Committee that panelist Judge M. Margaret McKeown was asked by Ninth Circuit Chief Judge Sidney R. Thomas to chair last December in the wake of harassment charges against its judge, Alex Kozinski, who retired weeks after the allegations became public in The Washington Post. She also is a member of a national working group established by Supreme Court Chief Justice John Roberts to look at the judiciary workplace. That committee delivered its report in May. Among the recommendations were to establish a new office of judiciary integrity, a national hotline for reporting, revised ethics codes to both for judges and employees so that harassment is specifically spelled out and changes in the procedures for filing complaints against judges and a bystander obligation to take appropriate action if a person or fellow employee sees improper conduct. The Ninth Circuit also made recommendations that are being implemented.
“We are committed to a … civil workplace and workplace that is free of bullying” said McKeown. “We do not have all of the answers but we’re working hard to change the culture and to make it a workplace where individuals want to work.”
Panelist Nicole VanderDoes, chief counsel, ABA Standing Committee on the American Judicial System, said that the judicial system should be held to a higher standard and accountable, and that includes judges. VanderDoes revealed in a first-person account last February in the ABA Journal that she was raped 10 years ago by a state court judge whom she had met at a bar association event while waiting for friends and four years ago she was “pressured into sexual activity” with a federal judge she knew and admired professionally. She didn’t report either incident for fear of not being believed and hurting their careers.
“I knew if it was happening to me it was happening to other people,” she said. “But I was genuinely concerned how it would reflect on the judiciary if I reported it. I cared about that. But I haven’t changed, society has. As a result of MeToo, people now know that if they tell someone they will be believed.”
VanderDoes said that the #MeToo movement has shown that you can effect change. “If you see something, say something and do something,’’ she said.
The “say something do something” moniker is the theme of a bystander training video being used at Microsoft, where panelist Teresa Hutson is deputy general counsel, HR Legal. Last December in the wake of the sexual harassment claims sweeping the country, Microsoft made a change in workplace policy by eliminating forced arbitration agreements with employees who make sexual harassment claims.
“It’s pulling everybody into the conversation to say that you are responsible. That you have to take action as you see something to do something,” Hutson explained. “Even if it’s just going to the person and saying, ‘Hey, are you ok?’ It puts the responsibility for culture where it belongs, which is on all of the people that create the culture. That is how you drive change.”