It’s been 15 years since Legally Blonde introduced us to Elle Woods and gave us an unexpected take on sexism in the courtroom all wrapped up into one surprisingly inspirational sorority sister. Who could forget Woods’s Harvard admissions video essay, with Reese Witherspoon teetering on impossibly high heels, shouting “I object!” after some dude wolf-whistled at her?
If only those courtroom antics were the stuff of pure Hollywood fiction.
As of Monday, August 8, the American Bar Association said it’s now officially considered professional misconduct for lawyers to discriminate, harass or single out any other lawyers on the basis of sex, race, religion, disability, age, sexual orientation, gender identity, marital status and a slew of other factors. Up until now, there had been no national rule against such behaviour.
The ethics rule spells out harassment as “derogatory or demeaning verbal or physical conduct… includ[ing] unwelcome sexual advances, requests for sexual favours and other unwelcome verbal of physical conduct of sexual nature.”
Yes, it’s 2016, and it’s taken that long to get it in writing. Now if an American lawyer calls another lawyer “honey,” “darling,” “dear” or any other inherently sexist moniker, they run the risk of disciplinary action, ranging from fines to even losing their license to practice.
Naturally the news got us thinking: What’s the sitch in courtrooms across Canada?
So we called up Cynthia Petersen, who specializes in equality rights and workplace human rights law, and has acted as the Discrimination and Harassment Counsel for the Law Society of Upper Canada for the past 14 years. Basically, she’s the go-to for any lawyer or paralegal in Ontario seeking confidential advice and information on how to tackle sexism and harassment in the workplace.
“I think the decision of the American Bar Association [ABA] is overdue, frankly,” she says. “By comparison to the way lawyers are regulated in Canada, it shows that the rules of conduct established by the ABA are a little behind us.”
As Petersen explains, on American soil, it’s still a shock for lawyers to discover they could be disciplined for using sexist language in their dealings with other lawyers. “That’s not the case in Canada, where provincial law societies have generally been more progressive in adopting rules of professional conduct to address discrimination and harassment issues. There have long been professional rules of conduct proscribing that kind of behaviour,” she says. “Lawyers who use misogynistic or otherwise discriminatory language can be disciplined.”
Still, discrimination based on gender, race and sexual orientation does happen up here and with relative frequency. In fact, Petersen says sexual harassment—which can include inappropriate sexist comments or more serious misconduct—is one the biggest problems faced by women in the legal profession in Ontario.
“In my role, I have received many complaints over the years that include the type of language that the ABA has declared to be unprofessional. Words like ‘honey,’ ‘dear,’ ‘darling’ or ‘bitch’—and much worse,” says Petersen. “I receive numerous complaints, particularly from junior female lawyers, who have had a range of encounters, where typically a more senior male counsel might use overtly sexist language.”
Petersen herself has experienced sexist remarks more than once. “In the past, I’ve been called ‘dear,’ ‘darling,’ ‘honey’ and on occasion ‘babe,’” she says. “I no longer hear that type of language directed at me anymore, but I know it still happens often to junior female counsel.”
One memory in particular springs to Petersen’s mind, when she was a young lawyer stepping in for a more senior, well-known counsel who was ill. “I had parachuted into the case at the last minute. I remember appearing before the arbitrator with my client and introducing myself, saying that I was filling in for so-and-so. His initial comment? ‘Oh, well, you’re much better looking than him.’ He kept at it during the hearing, making comments like, ‘Wow, she’s not only better looking than so-and-so, she’s smarter too. She’s got brains and beauty.’ He thought he was being complimentary, but in that setting it was humiliating to me—especially in front of my client,” says Petersen. “He was the decision-maker, and what he said undermined even my client’s confidence in my ability to represent him.”
Petersen’s experience is one that will likely ring true to many female lawyers. You can find reports from January 2000 to June 2015 on the Discrimination and Harassment Counsel Program’s website that detail fairly shocking complaints. In a 10-year report on discrimination and harassment in the legal industry, of the 586 complaints made between 2003 and 2012, half related to gender. Women made up 68 percent of the complaints to the counsel in 2003, and 78 percent in 2012.
In another report, between January and June 2015, 101 people contacted the counsel with complaints. Fifteen of those complaints were made by lawyers (or other members of the legal profession, such as paralegals or articling students) against other lawyers. Just three complaints were made by men. The rest were from women—and included nine complaints that involved sexual harassment by male senior partners and male colleagues in the workplace, sexist comments and gender-based discriminatory treatment by male lawyers, name calling, and in one case, stalking. One woman reported that her workplace “was poisoned by sexist, transphobic and homophobic remarks made by the same partner.” And that’s just the tip of the iceberg.
So far this year, Petersen has received three complaints of gender-based discrimination from female lawyers, including allegations of demeaning or offensive language—“which is not to say that it doesn’t happen more often, it’s just that I’m not always called to offer advice or intervene,” she says.
In one recent case, a lawyer who had been practicing for seven years came to Petersen and said that she worked in a male-dominated sector and a lot of the opposing lawyers in her cases were senior, more experienced and much older. “At least two of the opposing lawyers regularly interrupted her, spoke to her in condescending ways, referred to her with demeaning terms and generally treated her disrespectfully with behaviour not exhibited toward junior male counsel,” Petersen says. “She wanted to address the issue herself and sought my advice on how to approach it. In the end, she spoke to both of the lawyers individually and reported that it went really well. Both lawyers were apologetic and acknowledged that the language they had used was not appropriate.”
“I don’t think that their behaviour had been intentional, but it needed to be pointed out to them,” she says. “That’s the one part of my role that I love: helping to empower people.”
While Petersen says over the years she really hasn’t seen much change in the number of gender-based complaints she receives from women, there has been at least one hopeful trend: fewer complaints of discrimination based on pregnancy.
And she has seen other markers that bad situations can be improved. “I know that I have assisted several young lawyers whose careers might have otherwise been derailed by harassment situations,” she says. “Some times, real education occurs, and I have seen the behaviours of offending lawyers change.”