How bystanders can stand up to sexual harassment in the law office
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Since the initial accusations against Harvey Weinstein in fall 2017, the media has chronicled the fall of network superstars, celebrity chefs, patrons of the arts, sports figures and corporate leaders—with sexual harassment victims sharing their stories in horrifying detail.
In their descriptions of being sexually harassed and assaulted, the survivors have also revealed workplace practices and systems that, for decades, have served to protect perpetrators, not victims.
Whether because of a lack of policies, or a failure to meaningfully implement existing ones, individuals who have been the recipient of sexual harassment, bullying or other negative behavior in the workplace have historically felt forced into silence to protect themselves against possible retaliation. And even as too many victims remain silenced by that fear, the increased attention to the #MeToo conversations gives hope that more victims will speak out.
As these stories continue to emerge, however, it is important to recognize that the circumstances often involve more than the harasser and his or her target. Although many harassing incidents purposefully take place where the behavior cannot be observed, not all do.
Unwanted touching, suggestive remarks, insulting humor, inappropriate emails shared with a group, cutting comments made within earshot of others, or uninvited behaviors that occur during a business event where people are drinking—these are just some of the instances in which negative conduct is observed by others.
In other instances, there are third parties who are familiar with the perpetrator’s behavior through well-developed, internal networks of co-workers serving as early-warning and avoidance systems.
Bystanders are those who witness or otherwise are privy to behaviors of fellow workers who harass, demean, disparage or insult others, whether that treatment is against individuals or particular groups. Even though bystanders are not the intended target, they, too, can endure a personal toll that is often overlooked.
Bystanders recognize they have a potential role in aiding the target of the remarks but may fear they will be subject to scrutiny and retaliation for speaking out in the face of misconduct. They may struggle with feeling complicit by not responding or helping the victim more directly. And they also may worry about whether they may be the next victim of those who thrive in negative workplace environments.
Bystanders who feel unable to intervene without risk of retribution reinforce the perspective among employees that the workplace culture is toxic. This can result in far-reaching impacts. An organization that is perceived to be unfair or uninterested in addressing workplace misconduct will suffer from employee disengagement and poor morale, as well as the possibility of negative impacts to its brand and image.
Bystanders in law firm settings
Last year, I partnered with the Women’s Bar Association of Massachusetts to develop a survey to analyze workplace conduct in law firms. The survey asked a series of specific questions about whether the respondents experienced certain behaviors and, if they did, whether they reported the incidents. We also asked what happened as a result of their reporting and, when they did not report, why they chose not to do so.
The respondents described a wide range of behaviors that they either experienced or observed and offered numerous reasons for their silence. In most instances, however, the reasons for remaining silent were attributed to fear of retribution or being asked by the victim to stay silent. In most instances, the bystanders felt as powerless as the victims.
One respondent wrote that she did not get involved, even though she knew of incidents in which male partners inappropriately touched and stared at younger female lawyers. She stated that because the women involved were reluctant to report the behaviors, she was obligated to honor their privacy.
Another observed a partner regularly “hitting on” an associate but did not take steps to intervene or report, stating that she feared retaliation. Similarly, a respondent who witnessed a partner groping a junior associate did not report, noting simply that she was not the one who was groped. Yet another described a partner inappropriately touching female lawyers and stated that she did not want to embarrass either of the people involved.
While such choices to remain silent were the result of the bystander’s own perception of the circumstances, what does it say about the culture of the workplace when both victims and bystanders choose the likelihood of ongoing misconduct over reporting?
How employers can help
Employers should include bystander intervention strategies as part of a comprehensive policy to address workplace misconduct and provide bystanders with the tools that they need to support victims.
By implementing effective bystander intervention training, bystanders can be empowered to respond when they witness negative behaviors. The implementation and normalization of safe intervention strategies will also send an important message to victims that they are not alone.
In developing a culture that encourages reporting, organizations should consider the results of a study reported in the Employee Responsibilities and Rights Journal that demonstrated a link between a strong sexual harassment policy and the likelihood that a bystander will report the behavior.
This study revealed that a noticeable and prominent policy that firmly and explicitly articulates a lack of tolerance for harassing behaviors is more likely to result in bystanders taking steps to formally report misconduct. The significance may be that when the workplace policy makes clear that harassment is taken seriously, it signals to bystanders that they are at low risk for retaliation if they report.
How bystanders can intervene
Bystanders can be taught safe intervention strategies that can help make a difference. For example, bystanders who observe inappropriate behaviors can give voice to someone who may feel voiceless or to amplify a rebuke to what is transpiring. Interventions can be as simple as a stern retort following an inappropriate comment, a humorous remark to redirect the behavior, or a private aside that lets the perpetrator know why the comment was offensive.
There are also circumstances when a more complex level of intervention may be warranted. The more complicated the circumstances, the more important it is that a bystander be given the tools to respond most effectively, whether in the moment or later.
In the Women’s Bar Association of Massachusetts study, a respondent described how she handled sexist, racist and obscene emails that were allegedly sent as attempts at humor. She took a proactive response by emailing to all, emphasizing the inappropriateness of the communications. She also followed up directly with the perpetrator. This led to the issuance of a policy to curb any future actions of a similar nature.
One respondent told of her embarrassment when opposing counsel put his arm around her and joked in a demeaning way. She was heartened by the response of her lead counsel who called out the behavior on the record.
In another example, a respondent noted that at a firm event where people were drinking, a male partner was overheard making offensive comments to a female associate. The respondent spoke directly with the female associate, informing her that she saw the offense as very serious and would address it with the partners. Even though the respondent did not know whether any direct punishment was imposed, it was apparent that there was reputational damage to the offending partner as a result of the incident.
A young respondent to the survey described the discomfort she felt as a result of suggestive comments that she endured at her organization’s social events. Because of the seniority of the offending individuals, there was not an official route of reporting available. When she shared her concerns with a male colleague, he offered a practical intervention by standing next to her when firm social events ended, which was a disincentive to the offending partners from trying to hug or kiss her.
These stories are examples of the myriad forms that bystander intervention can take. Colleges and universities have been providing bystander intervention training for years, offering helpful examples of best practices and corroboration of its importance.
By building on these examples, workplaces can focus on a range of challenges that bystanders can face and create an environment where people feel comfortable reporting harassment, teaching bystanders how to safely intervene and learning to develop a respectful culture.
Bystander intervention policies and training reinforce that we all have a collective responsibility to contribute to a respectful and inclusive workplace culture where negative behaviors and hurtful conduct are not tolerated, and where victims and bystanders are encouraged to report misconduct and will be protected when they do.
Everyone deserves the right to feel safe and respected at work. And every workplace will benefit from providing that environment.
Lauren Stiller Rikleen, president of the Rikleen Institute for Strategic Leadership, is the author of The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace, a newly released book published by the ABA. She’s also a member of the ABA Journal’s Board of Editors.
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