‘Not becoming of a woman’: lawyers may ultimately get recourse for harassment

American Bar Association adopted model rule just last week to encourage states to implement discrimination sanctions currently unavailable in half of US states

Its been nearly 25 years since Anita Hill, a lawyer and law professor, testified before the US Senate judiciary committee about the sexual harassment she allegedly experienced at the hands of then US supreme court justice nominee( and fellow lawyer) Clarence Thomas. Though Thomas was ultimately confirmed to the court, the hearings and the media coverage led to a rapid uptick in the filing of sexual harassment grievances and federal awards to victims, and a broader understanding of what qualifies as gender discrimination and sexual harassment.

Except, it seems, in certain regions of the legal profession: it was only last week that the American Bar Association adopted a model regulation to foster country bar associations to prohibit and sanction sexist, racist and other discriminatory comments and conduct by lawyers.

Mark Johnson Roberts, chair of the ABAs commission on sex orientation and gender identity, an example of an incident that happened to a colleague in Oregon. Its a business social event, and her opposed advise in one of her cases is there, he said. To make a long story short, he grabs her butt. She tells him, My husband isnt going to appreciate that, please stop.

Later in the party, he comes up, hugs her and grabs her breast. She bolts away, and he follows her. He corners her and he asks her in the crudest possible words first, whether she was going to copulate with her husband that evening and second, whether she was going to perform fellatio upon him. Preferring not to seek criminal charges for the assault, she went to the country bar and, he said, was told there was no recourse unless he had a criminal sentence. She afterwards filed criminal charges and he was convicted, and Oregon has since revised its country rules.

Though characterized in some media coverage as a rule that would bar judges and lawyers from calling females honey or sweetheart in legal settings, the new regulation would go much further, barring harassment and discriminatory conduct based on race, religion, sexuality, disability, LGBTQ status and other factors when such conduct is related to the practice of law in nation bar associations that adopted it. Punishment for wrongdoers found to have violated the rule would differ, but could involve official warns, penalties and, in egregious instances, potential disbarment.

Only 25 nation bar associations and the District of Columbia currently prohibit such discrimination and harassment, which means that lawyers in half the country who have been subjected to it and especially those in private practice have little, if any, professional recourse.

In the US, state bar associations are responsible for sanctioning lawyers( including disbarring them) for professional misconduct. Without a prohibition on harassment and discrimination, conduct that could be considered a fireable offense in many American workplaces would have limited repercussions for lawyers who engage in it.

Lori Rifkin, a trial lawyer in northern California, is one of a small number of female lawyers who have successfully obtained sanctions against lawyers who constructed sexist comments in a professional situate. As part of a more expansive motion to have a male opposing counseling in a case sanctioned for a variety of what she and her co-counsel worded substantial discovery misconduct, she was able to present evidence of him using sexist speech to belittle her.

While questioning her opponents client in a deposition, she said that the male opposing advise kept cutting her off, and as she was objecting to his behaviour for the record he did so again.

He told me that my behavior was not becoming of a woman, she said. And then he stopped.

There was kind of a gasp in the room, Rifkin said a room that included a female tribunal reporter and several other lawyers and he added: Or an attorney who is acting professionally.

While researching her efforts to sanction the lawyer in the case, Rifkin found that there were only two other successful motions in similar occurrences, despite the fact she had experienced sexist commentaries from her earliest days as a lawyer. Ive dealt with and Im sure you can pick any woman lawyer off the street and shes dealt with comments like these. Its just so rarely this clear and on the record.

The judge in the case excoriated the opposing advise for his remarks, and levied a fine.

But stories like Rifkins are all too common, even if tribunal filings and sanctions against wrongdoers are not. Im 37, and I have supervised numerousfemale lawyers younger than I, and I can confidently say that[ this behavior] is not going extinct, she added.

Katina Ancar, who currently runs as in-house attorney for a public bureau in California but used to work at a law firm, has had to find ways to cope with both gender and racial discrimination in her career, largely from clients and co-workers.

Very recently, I had a very senior employment lawyer, the most senior employment attorney in the organization a white female stroll up to me, she said. And her hand came at me, and as shes doing it, she says: I know I shouldnt be doing this, and then she set her hand in my hair.

Many African Americans view the tendency of some white people to, without permission, fondle their natural hair a racist act. I wasnt a person, she said. I was an object for her.

Ancar, who had only recently cut her hair in order to transition to a more natural style, found out it wasnt her co-workers first time touching the hair of African American employees. I told another African American attorney in the office, and she said: Yeah, shes done it to me.

But it was often clients, Ancar said, who engaged in the most discriminatory action. Some, for instance, often refused to let the young female associates induce tribunal appearances, even though they did the bulk of is currently working on most cases. Weve had to use statements by judges[ in support of the associates who write the briefs presenting them in tribunal] to convince even our female clients to allow female associates to appear in court, she said, because there was no direct style to call the behavior discriminatory without alienating the customer.

You get sexism from men, but it imbues the route females guess as well.

Paula Brantner, a lawyer and consultant who formerly operated the nonprofit Workplace Fairness, said of the American Bar Associations model rule: Its one of those things that I think was obviously overdue.

You would think the profession would be able to police itself, that this would be a no-brainer, she added. But its happening in the courtrooms, its happening between opposing advise and co-workers, its happening outside the office in professional settings.

Its not about the competitive practice of law. Its about people seeking to assert power over other people, and this is one way they do it.

Rifkin concurred. The fact that it took until 2016 is emblematic of an ongoing problem in the legal profession, she said. The notion that sexism or racism or homophobia have somehow gone away or become less prevalent in the legal profession is a myth.

And though Rifkins successful occurrence against her opposing counseling drew plenty of media coverage at the time, shes not sure it changed enough intellects. As lately as last week, she explained, an lawyer approximately my age, the first thing he said to me in a deposition was: Calm down.

Read more: www.theguardian.com

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