We observed last year that the legal industry is no more immune to the holdovers of sexism than any other profession. As we noted, in a step toward stemming this problem, the American Bar Association has passed a new model rule for attorney professional conduct, treating discriminatory actions by attorneys as ethical misconduct. Rule changes, of course, do not immediately result in conduct improvements; just last week, a federal judge in California significantly sanctioned a male attorney for complaining about a supposed display of “female energy” during a deposition. While this latest example appears to be the most serious attorney sanction imposed yet for such behavior, several other attorneys have also been recently sanctioned for similar conduct and statements. Given that at least four different judges have found a need to sanction attorneys in the past few years, it comes as little surprise that in a 2015 survey conducted by the Florida Bar, 43% of all women who responded reported experiencing gender bias and another 17% reported experiencing harassment in their professional setting.
We speak openly about these problems in our profession because we would be hypocritical not to acknowledge the need to fix ourselves even as we counsel our clients to address these concerns in their businesses. Without speculating whether gender-based or other biases are more or less significant in the legal industry than in others, what we can say is that every industry on some level battles with these concerns because they often emanate from personal biases, not company-approved cultural norms. Regardless of whether they are in line with an employer’s principles, an individual’s personal beliefs and conduct impact whether an employer’s written principles are cultural norms or merely words on a paper.
Companies can of course think of overdue steps forward in eliminating personal misconduct in terms of “compliance challenges” necessary to reduce legal landmines. But viewing shifts in perceptions and growth in our collective social and civil maturity from a perspective of compliance, while better than nothing, may not be the best way to promote compliance with equal opportunity and inclusiveness principles. The better way for employers is to seek to lead, rather than just keep up with, the change in social norms. While compliance should come along with such an orientation, it also comes as a secondary benefit to an employer that does not merely position itself as a change leader through policy, but instead demonstrates that it truly wants to eradicate the holdovers of past social eras by living out these principles within the day-to-day, moment-to-moment aspects of company business.
With that, we step down from the soap box and back to the counselor role. For companies wanting to prevent employees from making the kinds of comments and behaving in ways that have resulted in the sanctions noted above, they should start at the top. Any problematic comments by leadership, especially if made to a group of eager-to-please subordinates, will always sustain any existing cultural problems or weaken the fortifications against them. While we see routinely that training on company principles is needed at the entry level, it should not and must not be ignored at the top of the organizational hierarchy. It very well may be that entry level training will have no meaningful effect if the principles of that training are undermined from the top and trickle down.
From a best practices point of view, we suggest that for companies wanting to enhance their compliance efforts in this era, when gender and other biases continue to manifest in the form of stray comments and other regrettable behaviors, the best strategy is to stop thinking about it from a compliance perspective. Rather, smart employers may best promote compliance by focusing instead on leadership, both in being a social leader and in demanding that company leadership conduct themselves, in every setting, in an inclusive manner and avoid taking actions that weaken those principles.
