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An unspoken problem

Two-thirds of female lawyers say they have experienced or seen harassment at work. But few want to talk about it.

By KRIS HUNDLEY
Published April 24, 2005

Jennifer Kent, who just finished her first year of law school at the University of Florida, has gotten plenty of advice from UF's Career Services department on how to land a job in the legal field.

She has been told to wear a skirt, not pants, for the interview. Carry a briefcase, not a purse. Nix on open-toe or sling-back shoes. And during the all-important interview lunch, Kent has been reminded to break her bread into small pieces, fold her napkin into thirds and keep her elbows off the table.

But no one at Kent's school has addressed how she's supposed to behave if one of the law firm's partners can't keep his hands off her. Or if a partner in the firm makes inappropriate comments about her sex life, her apparel or her physique.

"It's a very conformist culture, at least at the big law firms," Kent said of the coaching for her legal career. "But nobody's talked about sexual harassment so far."

It might be an appropriate, even urgent topic. According to a report in 2001 by the American Bar Association, nearly three-quarters of female lawyers believed sexual harassment was a problem in their profession. The report said surveys found as many as two-thirds of female lawyers said they had experienced or observed sexual harassment. (In similar, though earlier, surveys of women in other corporate or public settings, only half said they had experienced or observed sexual harassment.)

Diane Yu, a lawyer and chairwoman of the ABA's Commission on Women in the Profession, doubts the situation has improved since then.

"To the extent so many women in the legal field believe this is a problem and to the extent many feel speaking out carries enormous personal and professional penalties, it will continue to be a scourge on our profession," said Yu, who is chief of staff and deputy to the president of New York University. "It's very troubling."

There are plenty of reasons women, even well-educated women trained to aggressively fight for their clients' rights, might shrink from fighting for themselves. The harasser, often a more senior employee, may well have influence over the woman's future in the firm. Filing an internal complaint can lead to rumors and being labeled a complainer. If the complaint is handled internally, even if it's not resolved to the woman's satisfaction, she's sworn to secrecy. And if she takes the extraordinary step of suing, she can pretty much kiss her future in big law firms goodbye.

Joanna Grossman, a visiting law professor at University of North Carolina in Chapel Hill, said most women cope with harassment rather than confront it.

"They laugh it off, complain to friends, call in sick or just quit," she said. "These seem like much easier solutions."

Kate Reder, a second-year law student at UNC, said Grossman and other professors have done a good job of at least broaching the topic of harassment with female students. Reder, who said a summer internship in a large firm convinced her it wasn't the right environment for her, said most women, faced with the problem, head for the door.

"The best advice we got was: Stop it as early as you can. Don't provoke it. And if you have to leave, somebody will take pity on you and hire you and get you back on a partnership track," she said. "There are no magic bullets. But it's just refreshing to have the dialogue."

Roxanne Rochester knows the price of confronting harassment.

In late 1990, as a junior associate at the Chicago firm of Fishman & Merrick, she began fending off unwelcome sexual advances by the group's president, Gerald Fishman. According to testimony given at trial, on several occasions spanning nine months, Fishman groped her breasts, cornered her in a hallway for a kiss, pinned her on his couch and assaulted her and forced her to have oral sex.

Rochester, 29 when the incidents began, initially tried to deal directly with Fishman, who was then 47 and married.

By the end of 1990, she turned to her assigned mentor, a principal in the firm, for help. His advice: Tell Fishman to stop it. When the harassment continued to escalate - and after Rochester's mentor left the firm - she shared her story with two other senior partners. She said they weren't sympathetic, but the harassment stopped.

Still, Fishman stayed in his position as a named partner. And Rochester's work evaluations, which had been excellent before she complained, soon deteriorated and she was shut out of securities work, which had been her main area of interest.

Frustrated and angry that the firm had taken no action against Fishman, in January 1994 Rochester filed claims with the Illinois Human Rights Commission and the EEOC. After the firm learned of the filings, she was terminated.

"The firm didn't have a policy that said I could expect a response by a certain date and I let them string it along," said Rochester, who said the delay meant the statute of limitations barred her from filing a battery claim against Fishman. "But at that point, I didn't want it to become a public thing. I just wanted to make sure he was not a danger to anybody else."

After getting her right-to-sue letter from the EEOC, Rochester sued Fishman and the firm in July 1995. Three years later, the case went to trial and the jury deliberated for less than three hours before awarding her $1.4-million in damages.

But Rochester's saga was not over. Immediately after the jury's decision, the 35-member law firm disbanded and filed Chapter 7. Fishman filed for personal bankruptcy under Chapter 11. After years of legal battles, Rochester ended up collecting about $650,000.

"After taxes, that probably just about covered attorney's fees," she said. "But it wasn't about the money. I believed my lawyer's license had the same value as anybody else's and I didn't want to see it reduced to the level of a street prostitute and I didn't want to flee the profession. It was something I had dreamt of doing my whole life."

After leaving Fishman & Merrick, Rochester opened her own firm. She made $6,000 her first year in business and rode a bike to work to save money. But her practice grew, with Rochester providing a range of legal services to small businesses. Now 43, she recently closed her office and began clerking for a Cook County judge.

"It was a bold step for me (to go back into the workplace)," Rochester said. "It lets me stay abreast of the law without having to work where people's hands are."

During the four years her case was pending, Rochester refused several settlement offers that included confidentiality clauses.

"It's not like I wanted to go rushing off to the press," she said. "But I was not going to be paid to keep their dark little secret."

Nor was she deterred when several more senior women in the profession, judges and lawyers alike, suggested they had had similar experiences and advised Rochester that to preserve her career she should settle.

"They wanted me to go away quietly and pretend nothing happened," said Rochester, whose father had been a judge. "I couldn't leave this for the next generation."

Last fall, six years after a jury found him guilty of sexually harassing Rochester, the state agency that disciplines lawyers in Illinois handed Fishman a one-year suspension for his behavior in her case. Rochester believes that is faint punishment for the man who sent her promising legal career into a tailspin and her personal life into a nightmare.

"The system is severely flawed," she said. "There is nothing to be gained legally or professionally by coming forward and there's a huge amount to risk. But I'm able to look at myself in the mirror now and like what I see."

Jay Marhoefer, a Chicago lawyer who wrote a review of Rochester's case while he was a student at Chicago-Kent College of Law in 2003, said her complaint exemplified the difficulties of dealing with sexual harassment within the legal profession.

"It's one notable situation in which the plaintiff has to rely on the very system that has been responsible for perpetuating the conduct to resolve the issue," he said. "It bore home the reality of the legal profession: It's not about justice, it's about solving disputes and the side with the deeper pockets wins. It shows how rarely justice prevails."

Marhoefer said confidentiality clauses, routine in harassment settlements, only perpetuate the problem.

"Confidentiality ensures that neither the facts of the perpetrator's harassment, nor the ensuing discrimination by the firm, will ever be made public," he said. "The resulting message is that the ability to harass can be purchased without consequence to either the individual's or the firm's reputation."

Several lawyers said they were astonished that lawsuits like Rochester's, in which sizeable damages were awarded, hadn't had a substantial effect on the profession. Along with Rochester's well-publicized case, a California legal secretary's harassment claim against the world's largest law firm, Baker & McKenzie, went to trial in 1998. The jury found in Rena Weeks' favor and she was eventually awarded $3.5-million.

"Really bad publicity and really big numbers, like in the Baker & McKenzie case, usually open people's eyes," said Lynn Hecht Schafran, director of the national judicial education program at Legal Momentum, formerly NOW's legal defense fund. "There will always be boorish people. The question is, what's the response of the firm to corral that behavior?"

The ABA's report on sexual harassment in 2001 found that almost all law firms had established formal sexual harassment policies after the cases involving Rochester and Weeks. But the report's findings on the prevalence of sexual harassment in the workplace were nearly identical to the responses to a 1995 report.

Yu, the head of the ABA's women's commission, said her group is now dealing with other issues, specifically why women of color do not advance in the legal profession. "Our resources and membership are modest enough," she said. "We're not able to tackle every major issue, but (sexual harassment) might be something we could commission a study on in future months."

Yu suggested the atmosphere at law firms might improve with more women entering the profession. "Women are now just about 30 percent of law firms," she said. "But if current admission and graduation trends at law schools continue, by 2010 they should be 40 percent."

She acknowledged, however, that women leave the legal profession - and specifically big firms - at a higher rate than men. Among the factors believed to be driving them out: an inflexible work environment for women with children and unresolved harassment issues.

"Until the loss of so many women starts to affect the draws of the partners in the firms, they're not going to pay this retention problem adequate attention," said Yu, who said corporations estimate the cost of losing in-house counsel at $400,000 to $500,000 per person. "It's quite remarkable that an expense of that magnitude keeps recurring and it's not viewed as a serious problem."

Law firms may not be particularly worried about losing female recruits when hordes of promising female graduates are lined up at the door. Today about 50 percent of law school students are women and landing a summer internship or entry-level associates position is extremely competitive. So competitive that career development offices carefully coach students on interviewing techniques. For female students, that includes advice on everything from apparel (wear a skirt, but not a tight skirt) to attitude.

Grossman, the visiting UNC law professor, said once women land a job, the advice from career services might be a hindrance in dealing with any problems that arise.

"The career services angle is to maximize the chance you'll get the job," she said. "That doesn't help when women get into firms and find their gender is sometimes treated differently. These women are not prepared to assert themselves. They're told to hide it and be a good girl."

Grossman, 36, said young women, particularly those who have never been in the workplace, often think she's exaggerating when she raises the topic of harassment.

"Many women in their early 20s don't expect to be treated differently because they've never had the experience of feeling victimized, harassed or targeted," Grossman said. "They're like, "Okay, if you tell me it's so, but maybe you just want to scare us.' They don't believe it until they see it."

Grossman is herself a bit incredulous. Years after a woman's right to a nonhostile working environment was upheld in the courts - triggering changes in male-dominated fields from mining to medicine - the legal profession lags behind.

"Employers are clearly taking more proactive measures than they did 20 years ago, but it's not clear the amount of harassment has gone down," Grossman said. "Why isn't any of this working?"

Times researcher Kitty Bennett contributed to this report. Kris Hundley can be reached at 727 892-2996 or hundley@sptimes.com

[Last modified April 24, 2005, 01:02:20]