Posted May 1st, 2018.
The #MeToo movement may give women in the legal profession the strength to speak up over more than just harassment, but inequity of all kinds.
By Vivia Chen
Women are giddy that the mini-Harveys of Big Law are getting their due. “I can’t believe Bill Voge got dumped like a hot potato,” exclaims an ex-Am Law 100 female lawyer about Latham & Watkins’ former chairman, who resigned after admitting to sexual communications with a woman he met through a Christian organization.
The number of Big Law partners getting booted for alleged sexual misconduct is rising, including those from Baker McKenzie, Mayer Brown and Herbert Smith Freehills.
Are women in Big Law now emboldened to speak out and seek recourse for the inequities they’ve endured? Has the moment of reckoning arrived?
Don’t get too optimistic, warns Joni Hersch, a professor at Vanderbilt University Law School. Writing in the Georgetown Journal of International Affairs, Hersch argues businesses haven’t been motivated to fix harassment problems because they haven’t paid a high price for them.
Underreporting and a lack of regulations, along with companies’ willingness to risk litigation to keep a high-status earner around, have kept the problem unchecked. “Why would companies do anything?” Hersch asks.
But the bigger problem resulting from the power imbalance in the legal profession remains pay inequality.
“Sexual harassment claims are a personal attack on an individual, and sex sells, so there is nothing quiet about that,” says employment lawyer Wendi Lazar. “Gender pay is not sexy” and compensation systems are “very complicated.” Lazar says women partners aren’t willing to litigate, though “they are willing to raise the issue in negotiations.”
Pay inequity and sexual harassment are arguably symptoms of the same disease, says consultant Gwen Mellor, a former law firm partner. “Trying to address sexual harassment as a stand-alone issue won’t produce results,” she says.
But if businesses haven’t paid a steep price for sexual harassment, what will make them address gender inequality?
Some are optimistic that #MeToo will make all gender bias taboo. “The #MeToo movement is forcing a change in tone and culture that affects a variety of contexts, including the pay gap,” says King & Spalding partner Jade Lambert.
The hope is the movement will make it difficult for firms to justify the costs of harboring a harasser. “The potential monetary exposure of these claims is less significant a concern than the reputational harm that can result,” says Roberta Liebenberg, a leading voice of the women’s bar.
In the harassment context, businesses are making a big show of condemning abusers. “We increasingly see so-called noisy separations in which the company explains why it parted ways with the harasser,” says Howard Lavin, a partner at Stroock & Stroock & Lavan. Businesses are being proactive because they fear that “social media may well expose the real reason [behind the resignation].”
So, will more women come forward now?
Yes, says lawyer David Sanford, who recently settled a pay equity case against Chadbourne & Parke (now Norton Rose Fulbright) for $3 million under the Equal Pay Act, plus $1 million in legal fees. And this week his firm sued Morrison & Foerster on behalf of associates who alleged the “mommy track” is a road to nowhere at the firm.
“We now represent approximately 30 plaintiffs … who are suing Am Law 200 firms,” says Sanford. “I don’t know if it’s because of #MeToo, but people are coming out and raising claims. I have no doubt companies and firms are much more willing to settle.”
The shaming power of social media is the best hope for change, agrees Hersch. “Maybe sexual harassment will be decreased because people are on notice now—that you will be outed and lose your job,” Hersch tells me.
So does that mean women should feel confident speaking out? Hersch demurs. “Maybe,” she says. Not exactly a ringing endorsement. But we’ll take what we can.