The world watched in amazement as the Harvey Weinstein scandal unfolded in Hollywood. For good reason too, as this was the beginning of the storm that proved to spare no industry. First it shook Hollywood, then the hospitality industry, then the charity sector, Parliament, and now it has reached BigLaw: another one that has exceeded its period of immunity.
The sad irony of the #MeToo revelations is that the alleged sexual misconduct has been perpetrated by those who make the law, as well as those that practice it. From Tory and Labour MPs, partners at giant firms such as Baker McKenzie and Dentons to partners from Mischon de Reya listed on the Presidents Club guestlist; the law is being cast aside in the two places where it should be upheld most.
In spite of The Equality Act 2010 which requires us to “have due regard to the need to… eliminate unlawful discrimination, harassment and victimisation”, over two-thirds of female lawyers have experienced sexual harassment while working in a law firm according to a 2017 LegalWeek survey.
But when we delve deeper into the causes of such widespread abuse of power, we should not be surprised. Except this time, it directly points to gender diversity. The conversation is no longer gender diversity for the sake of diversity, but about the lack of diversity creating a highly broken and abusive system.
What would politics and the corporate world look like without entrenched power structures? For one, we would not know. Men have dominated in both areas in numbers as well as seniority. As of the 2017 election, 208 out of 650 MPs are women. True, that is 12 more MPs than 2015, but still only constitutes a 32% representation. This zero-sum progress makes a similar appearance in the legal world: according to a Chambers Student survey, on average women make up 57% of trainees and associates of commercial law firms but only 27% of partners. For US BigLaw in the City, this number drops lower to a stunning 16%.
This can mean one of two things. First, that an overwhelming 40% of the qualified female solicitors choose “lifestyle choices” (Lord Sumption’s words) that prevent them from making partner (i.e. becoming a primary carer and then quitting the legal workforce for good). Undoubtedly, this does apply to some women. But to claim this “choice” is the only simple explanation is laughable, as many become primary carers but re-enter the industry with an intention and ability to further their careers. Rather than making partner later relative to the years they took out to raise a family, they are knocked out of the race entirely.
What is thus much more believable is that most of the 40% who cannot trickle up to partnership discover that the equal playing field they qualified in was never really equal. The higher they looked to go, the more skewed it was in favour of their male counterparts. Why was this the case? Because still far too many positions of power and leadership are circulated amongst entitled “old boys’ clubs”. In order to put an end to the system of sexual abuse and harassment, the structural sexism that divides men and women in title, decision-making power and influence needs to be addressed and disseminated.
This means women at the Bar should no longer be pigeon-holed into the family law division, but have equal access and chance of heading other divisions. It means networking, client-building and business development opportunities should not be held at sleazy “all male events” such as the Presidents Club gala dinner. It also means law firms should support their female employees over their inappropriate clients, and to champion a zero-tolerance attitude to uninvited sexual comments or touching presented as “drunken banter”. Mostly however, it means developing a rigorous procedure to deal with complaints of sexual harassment rather than a HR policy which responds with pay-outs and non-disclosure agreements. The legal industry needs to stop protecting male partners and clients who abuse their power. In a time where anonymous surveys are the only safe media for female lawyers to speak out without repercussion, we have far to go before an open and secure environment can facilitate this type of discussion.
So how far have we come already? Fittingly, last week the President of the Supreme Court, Lady Hale, and Baroness Chakrabarti spoke at the LSE in celebration of 100 years of votes for (some) women. They both addressed the cause for celebration alongside the need to drive further change. In a similar vein, we should celebrate the attention given to the issue of gender diversity in the legal workplace. 13 City firms have committed to ‘The 30% Club’ of female partnership by 2020, and national and regional firms boast higher female partner representation at 31% and above. Similarly, US giants White & Case and Latham & Watkins have built women’s networks and committees across their offices to provide support, training and mentoring access. But now we have further cause to speed up this progress.
Employers need to exercise a greater duty of care towards their female employees; fee-earners and business professionals both. This necessitates an institutionalised support system, greater access to due process and career security. Perhaps this requires internal disciplinary committees to assist with regulated procedures. Greater female percentages at partner level should be on the horizon, for those women who want to make partner. This can be supported with stronger back-to-work schemes after maternity leave and a reformulation of the track to partnership; for instance, prioritising merit over the number of years served in a firm. For those lawyers who do not want partnership, they should be promised equal pay for the work they do. This can only be done by ensuring all law firms publish their pay data, which only three firms have done this year, as it will force firms to think twice when justifying why pay gaps exist.
In some ways, it is high time that the #MeToo movement hit BigLaw in the City. In fact, it should have started here at the top, and made its way down to the industries who do not actively practice the law. But what the movement has brought is not only an age-old conversation in a new year, but legitimacy to the cause of diversity. The cultural and structural changes in law firms are needed to make the workplace productive, forward-thinking and free of sexual harassment. This cannot be the case when women are in the few, and men in the majority.
The movement has not brought a “witch-hunt”, but a predator-cleanse.
15 February 2018