In the third part of the new podcast series Venus Envy, Zoë Lawton and Hayden Wilson discuss how the culture and corporate structure of law firms created a fertile environment for sexual assault.
While #MeToo was born out of the Hollywood film industry in the US, the legal profession has been at the centre of New Zealand’s movement against the sexual harassment of women in the workplace. This has revealed how the partnership structure – and the design of the industry itself – has fostered a culture where misogynistic behaviour has been accepted as normal and acceptable.
This year legal researcher Zoë Lawton started a blog “to provide legal professionals and law students with a safe and neutral platform to share their experiences of sexual harassment, bullying and discrimination” and the responses she received revealed the full spectrum of sexual harassment and bullying.
“It’s people actually saying it out loud and [it’s also people being] implicit. The full range of sexual assault, right through to rape. I have a lot of women come forward to me privately to tell me about it. It’s just so incredibly sad to hear. Especially in that after work Friday environment, where there’s a lot of drinking involved. One of the things that struck me is that so much of the sexual harassment happened in the cold light of day, in the office, and often in front of people,” she said in conversation with Noelle McCarthy, as part of The Spinoff’s podcast series in collaboration with the Auckland Museum.
“One of the stories that really shocked me when I read it was a senior male at a law firm here in Auckland who thinks it’s incredibly funny to stand next to junior female colleagues and unzip his pants and put his penis on them to see how they react.”
This behaviour, and the difficulty women have had in having their stories heard, is a result of the profession’s unique design, according to Hayden Wilson, a partner in the Wellington office of Kensington Swan. The profession’s partnership structure creates lower levels of corporate control because the person in charge is also the shareholder who is also in the office every day.
“They tend to be a little bit more dominated by fiefdoms, which means that it’s really really difficult to make a complaint about a person who is almost certainly the most powerful member of the sort of fiefdom that you inhabit,” said Wilson.
Until #MeToo demanded the legal industry address its behaviour, the culture was self perpetuating, Wilson said.
“Where you do most of that learning is in your first jobs, and what that means is people see the way that the senior people behave, and they sort of acculturate to that. They believe that’s how things are done and then they go on and pass that culture down. That’s what leads to the kind of cultures that are enabling of this kind of behaviour of sexual harassment and bullying. The only way that the law survives as a profession is if it squarely addresses that,” he said.
But the conversation has started, and women have felt empowered to come forward to the media, to their employers, and to people like Lawton, who have offered a safe place to tell their story.
“It’s really great to see that momentum and I really don’t want it to stall, because we have so much further that we need to go, I think we’re only at the start.”
Noelle McCarthy: One of the things that was pointed out in the wake of Russell McVeagh is that it’s still too hard to complain. It’s still too hard to say ‘this is offensive’, and to have some sort of meaningful consequence as a result of that. What are the barriers in practice to actually making a complaint, or the consequences to making one if you’re a young woman?
Zoë Lawton: That came through a lot in the feedback I got through the blog and through emails. It’s so stressful, or sometimes just totally unrealistic, to complain, depending on the type of work place that you have. People talked about going to HR and getting brushed off or not believed, or saying it’s best to not take it further. There’s so much fear in the legal profession around the career ramifications.
It’s a relatively small industry but that has come through really strongly. You can report to your employer, you can report it to the Law Society but as we’ve seen not a lot of people have gone to the Law Society and used the complaints procedure. One of the reasons why some of the really serious stuff doesn’t go to that level is potentially because of non-disclosure agreements. Lawyers are often pressured into signing confidentiality agreements if they reach a private settlement after raising a sexual harassment issue with their employer.
The policy at the moment is that the Law Society will accept your report of sexual assault or sexual harassment if you’ve signed one of these agreements. But at the end of the day that means you’re breaching that agreement.
So you’re potentially opening yourself up to action. How prevalent do you think this is? Are both of you aware of these as just a matter of course, that NDAs exist?
ZL: Absolutely. I had so many women come forward and ask me this that I actually had to go to the Law Society and say ‘what is your policy?’ I had women asking me if they can report it once they’ve signed these agreements, so it definitely is an issue. We just don’t know, because these women aren’t coming forward. We don’t know what the numbers are.
Hayden Wilson: Yeah that stat is really hard. Employment settlements generally in any industry are confidential. What I’ve heard of are actually separate non-disclosure agreements which goes a little bit further than what you would normally see in an agreed separation between a firm and an employee.
The complaints thing is really really interesting to me because it’s got so many levels. One of the real contributing factors to the difficulty of people making complaints is simply the structure of law firms and how they operate. Whilst big firms in particular are big corporate entities, the shareholders walk the floors every day, and the result of that is that they tend to operate with low corporate control. These are lower levels of corporate control than you would see in an organisation of that size somewhere else. They tend to be a little bit more dominated by fiefdoms, which means that it’s really really difficult to make a complaint about a person who is almost certainly the most powerful member of the sort of fiefdom that you inhabit.
That’s really really hard. This was quite a revelation for me because I spent nine years as a convener of one of the Law Society standard’s committees. I thought that I had thought quite deeply about the complaints process but listening to the stories that came out and the things on Zoë’s blog I realized that as a profession we have a huge number of rules about how we engage with the times, and we have even more rules about how we engage with clients and money, and we have a few rules about how we engage with other lawyers, but we have nothing in the code of conduct and client care that directly relates to how we treat the people who we work with.
How you treat each other.
HW: How we treat each other, absolutely. I was shocked that was the case, and I was shocked that I hadn’t figured it out. What that means is that the complaints system is not well structured to respond to these kind of complaints and that I think, is one of the fundamental changes that the Law Society is going to have to get its head around. This is an issue that relates to your obligations as a professional. Lawyers are very quick to hold our status as professionals in quite high regard, but we have to take a really honest look at ourselves about what that means when it comes to how we treat the people that we work with.
What’s the deal with resilience training? Why are so many young female lawyers getting sent on resilience training? And does it actually work?
ZL: It’s a bit of a cop out really. It’s a way for employers to put the problem back on the person who’s been harassed and say, ‘you deal with it individually and work out ways to avoid getting harassed in the future’.
Is that a standard part of dealing with a complaint by an HR department?
HW: I’ve never seen it, and I can’t imagine how resilience training is an appropriate response to a complaint of harassment. Resilience training is actually really quite useful for all lawyers, and all junior lawyers in particular. I can’t imagine that you would send someone on resilience training following a complaint of harassment, because that’s not something you’re expected to be resilient to.
One of the things that I realised as we had these discussions over the course of the last six months, [is that] when law firms bring new graduates in, we spend a lot of time talking to them about what’s expected of them, what they’re expected to do, how they’re expected to behave, but we don’t traditionally spend very much time at all talking to them about what they can legitimately expect from their employers and the other people that they work with.
One of my staff members was saying to me in one of these discussions that when she started in law as a graduate, it was her first time in an office environment. That was her first time in a suit, coming to work on a 9-5 basis, and she had no idea what to expect. Unless you help people understand what to expect they won’t have a baseline to compare what is appropriate behaviour, and what isn’t and what they should legitimately be entitled to call out as inappropriate behaviour.
So these grey areas are taken advantage of, or manipulated. Zoë what are the kinds of stories that people shared on the blog? Can you speak to what Hayden is saying there?
ZL: It’s really the full spectrum of sexual harassment and bullying. I’m talking about jokes which obviously aren’t funny for the person it’s directed at, through to unwanted touching, whether that be one-off grabs or just gross hugging, through to the other end of the scale where junior women are being blackmailed or coerced into sexual relationships with colleagues. ‘Sleep with me or your career is over’ type thing, and ‘you need me if you want to move up in this firm’.
Is that explicit or implicit?
ZL: It’s people actually saying it out loud and implicit. The full range of sexual assault, right through to rape. I have a lot of women come forward to me privately to tell me about it. It’s just so incredibly sad to hear. Especially in that after work Friday environment, where there’s a lot of drinking involved. One of the things that struck me is that so much of the sexual harassment happened in the cold light of day, in the office, and often in front of people.
One of the stories that really shocked me when I read it was a senior male at a law firm here in Auckland who thinks it’s incredibly funny to stand next to junior female colleagues and unzip his pants and put his penis on them to see how they react. This is during the day, there’s no alcohol involved, a senior partner with junior female employees. I’ve had several people come forward about this, and one of the comments was ‘this has been happening in this law firm for years and no-one is challenging the senior partner.’
There’s a closed loop there of self-perpetuating silence isn’t there? Danyl McLaughlan wrote a piece for The Spinoff about this sort of unique privilege of the legal profession, and he talked about how abusers don’t need to tear through the law because their very relationship with the law protects them. That really seems to go to the heart of the issue. Is it possible to keep partner culture in law firms and deal with this effectively or are the two inextricably linked?
HW: I think it is possible to keep the good bits about partner culture because there are a lot of really really good elements to the partnership relationship. We do have to understand and be prepared to talk about and unpick what the negatives of it are. Particularly when you are dealing with people who are by any stretch of the imagination, in the big firms, immensely privileged. I’m still shaking my head at the example of what Zoë was talking about.
And just to be clear Zoë, there are no repercussions for this. This isn’t something that’s subject of a complaint right now, or anything else besides this person telling you and putting it on the blog.
ZL: Yeah it shocks everyone but I think it’s just an example of some workplaces having a crazy work culture where this stuff goes on and the people doing it think it’s funny and people don’t feel like they can complain and it becomes normalized.
I think that’s another thing that came through in the blog, you come into a law firm and you don’t have a benchmark for what a workplace should be, or how you should be treated. And you think oh, this kind of culture is normal so can I complain about it? It’s not until you’ve been there for a few years and gone through a lot that you reach the point where you can recognise that no, this isn’t normal.
In terms of that normalisation, I don’t know how both of you felt or responded to the initial response to the Russell McVeagh stories, but it didn’t seem to me a rush to condemn this. There was talk of considering things and thinking about things by the profession as a whole, perhaps a move towards an inquiry eventually, but I didn’t necessarily hear a crashing condemnation in the initial moments after the story.
HW: One of the things in the law is that there’s a self-replicating culture because we are fundamentally an apprenticeship position. You come out of law school and you know a lot about the law but you really know nothing about practicing the law. Where you do most of that learning is in your first jobs, and what that means is people see the way that the senior people behave, and they sort of acculturate to that. They believe that’s how things are done and then they go on and pass that culture down. That’s what leads to the kind of cultures that are enabling of this kind of behaviour of sexual harassment and bullying. The only way that the law survives as a profession is if it squarely addresses that.
It’s about individual responsibility too though, isn’t it? You have to ask how much responsibility rests on men. Because in the example you just described Zoë, it’s a man, one individual person who thinks this is okay, and for however long has been getting away with it.
HW: And the other people who have walked past that behaviour as well.
That is mostly men, and that’s what I’m getting to with this argument. The idea of it being self-replicating is that until the present leaders of the profession, who are mostly men, in the firms, who are predominantly men, are prepared to actually address that behaviour, either in themselves as the people who are doing the behaviour, or in themselves in the people who are walking past it, then change isn’t going to happen.
Is that happening, do you think? What’s it like being a senior male lawyer in Wellington now following the Russell McVeagh scandal? Is there a feeling among men in the profession that they should be taking a long hard look at themselves?
HW: I think there’s a bunch of different feelings from a bunch of different people, both men and women, but yes, the focus on this issue has meant that it’s being discussed. That seems to be a useful first step because as you discuss you come to realise when you’re talking to people that their understanding of what is appropriate behaviour is different from yours. That’s a process of partly education, and partly, in some cases, just waiting for people to age out of the profession.
So you can just wait, and there’s no consequences and it just means that eventually they go under their own steam and on their own terms? That doesn’t seem fair.
HW: No and sorry, that wasn’t what I was meaning to suggest. What I was talking about there is the people who perhaps don’t intervene, the bystanders. They see something and they don’t necessarily process it as inappropriate. I’m not talking about the scale of the example Zoë just talked about…
#MeToo is doing that, isn’t it? The #MeToo movement is causing all of us to look back on workplace situations, or social situations, and think, ‘hmm, was that okay?’ There’s a reassessment happening, do you find that?
HW: Very much so.
ZL: One of the things that’s come through and that I’ve learnt through this experience is it’s terrible to be sexually harassed, but what can often be just as bad for women is the reaction of their colleagues. How people react when they disclose it, and how its handled by the management. These things spread like wildfire through the office, and I think people are being really saddened and disappointed by the reaction of their colleagues. Whether it’s been ‘oh this has been too hard to talk about’, ‘argh it’s too scary,’ or they’re uncomfortable or don’t support them or they don’t believe them, or ‘it’s your problem’.
I think if we give people who are going through this horrible stuff a lot more support, that would really really help. You don’t have to become a huge advocate for #MeToo but I always get asked ‘what’s the one thing I can do to help?’ and my answer is just be there for a person who discloses it to you. Believe them and help them get support. The other thing that would really help address this issue is if we allowed bystander reporting.
In a lot of workplaces at the moment, employers will only look into complaints where it’s the actual victim that’s come forward. If we had a culture where people who have witnessed sexual harassment can come forward with complaints, then that really supports the victim. If you’ve had five bystander complaints and then the victim eventually reports, they’re so much more likely to be believed. It’s a far more supportive way to do it rather than them having to do it by themselves, because it’s really tough to go through that process.
NM: That question of solidarity among colleagues plays off what you were saying earlier Hayden, that increased competitiveness within the industry, and also the pressure that individuals are under isn’t exactly the perfect recipe for a supportive office environment.
HW: It doesn’t need to not be, if there aren’t too many negatives in that sentence. I mean fundamentally the law is a talent business. And you can, and should, look at this as a moral issue. This is not the kind of behaviour that decent human beings engage in in relation to others and it shouldn’t be the part of the business of being a partner. There’s a moral case there but there’s also fundamentally an economic case, because if the law is a talent business, you are asking your staff every day to use their discretionary efforts to make the business work, and to deliver for clients. Staff who are unhappy, who are scared, who are vulnerable, don’t do that.
The cultures of firms generally need to change to accept that you can be competitive, without being brutal workplaces and without engaging in behaviour that is inappropriate, that is sexual harassment. That, I think, is the mindset change that people and firms need to go through. In a modern world, this is actually the best way to do business. You then get the moral side of the argument and the economic side of the argument matching up.
It’s always easier to make a case if something makes good business sense as well. Unfortunately it is about the bottom line isn’t it. Do you have a sense of optimism about things Zoë?
ZL: I’ve definitely seen a huge shift from when I first started doing the blog. People are talking about these issues so much more, I’m getting feedback from firms saying the ‘it’s the first time ever we’re talking about sexual harassment’, ‘we’re looking at our policies.’ I’ve spoken at seven or eight events about sexual harassment, events hosted by various lawyers associations, It’s really great to see that momentum and I really don’t want it to stall, because we have so much further that we need to go, I think we’re only at the start.
What are your main concerns, what do you think are the most important marks to hit at this point?
ZL: One of them is coming back to what you said before about getting men involved in the conversation. At these events I’m speaking at, 1% of the audience is male, most of the panel are female. It’s kind of framed that sexual harassment is a women’s issue because women are predominantly the victims of sexual harassment. So maybe men think ‘it doesn’t have anything to do with me, I’m not getting sexually harassed’. It’s just a mindset to get not just men, but also women who haven’t experienced it to really care and get on board with an issue that doesn’t affect them personally. Everyone needs to take some responsibility and get on board with it.
That’s fascinating what Zoë saying, isn’t it Hayden? Kind of depressing in a sense. To go back to that point about individual responsibility, because it seems like this is something that would necessitate conversations between men.
HW: Absolutely, and the conversations that have been happening, we’ve had conversations in our teams, we’ve had conversations that are firm-wide level, we’ve had conversations that are partnership level, we’ve had training at a partnership level, at a firm wide level. All of this is the first time that I’ve seen those sort of conversations and that sort of training happening in my career.
And how has it affected your views? What surprised you or what have you learned that you didn’t know going into it?
HW: The sheer scale of what I suppose you would call the ‘lower severity’ incidents of harassment within firm environments, also in terms of client relationships and in terms of the profession more generally was the thing that took me back the most. From the things that I had been aware of as a lawyer who’s been in the profession for a while, I was aware of individualised incidents of quite significant sexual harassment, but what I didn’t understand was how mundane and relatively common a lot of the jokes other behaviour that makes people feel uncomfortable was out there in the profession.
And that jives with what you experienced Zoë, what you heard from the blogs?
ZL: Yeah absolutely, and one of the, I guess the positives, the feedback in running the blog, is people saying to me ‘I didn’t realise the effect that those small jokes or comments, or that culture has on women and men’, and to be able to hear victims’ stories and voices and exactly how it’s affected them and their career and personal life.
It’s slowly getting worn down over the years. A whole lot of little things add up, really have a huge impact and this idea that you can complain about these really small incidences because they maybe don’t meet the threshold for sexual harassment in terms of the policy that your firm has on it. I really hope that managers and senior partners just read the blog so that they can see this issue from the perspective of victims because it really does open your eyes up.
And it’s not just victims, it’s colleagues, isn’t it? You talked Hayden about having a team of 12 women and going through this particular political and cultural moment, this #MeToo moment, are you having different conversations with the women you work with?
HW: Yeah, on a team level and across the firm, and one of the most valuable skills that I’ve picked up in the last couple of months is this idea of bystander interventions. That goes back to creating a culture where you discourage that sort of behaviour, that people are empowered to act if they see it.
We did a training session a month or two ago around what you can do if you see it happening and I think a lot of us can look back into our professional lives and can see incidences where at the time I think we thought ‘hmm it doesn’t look quite right.’ Maybe you’re meant to see something then or later, and for whatever reason you never did. Giving people the skills to know how to recognise it and what they can say is incredibly useful.
And it relates to the wider culture too, doesn’t it? Perhaps it’s easier to say it if you see it happening in your workplace if these things become norms, if this becomes how we treat each other, if sexist jokes just aren’t acceptable. Being the first one to speak up is always scary, isn’t it Zoë?
ZL: Yeah absolutely, it’s kind of what we’ve seen overseas with the whole Harvey Weinstein, Bill Cosby thing. It just took one incredibly brave woman to go to the media, initially, to break the cycle. The same with the Russell McVeagh story, to get that conversation going. Once that one person came forward so many other people did, and it’s the whole strength in numbers idea which I think is a really powerful concept but we haven’t got there in New Zealand. When I started up the blog there was lots of talk in the media of ‘oh there’s going to be this big witch hunt’, and ‘there’s going to be this avalanche of finger pointing at men’, and that hasn’t happened. How many people have come forward to the media? Pretty much none.
And people who work in the media know that’s because doing these stories actually takes an awful lot of time in terms of resources and energy because of the way our libel laws are structured in New Zealand.
ZL: I do just want to give a shout out to the amazing Olivia Wensley who is another former lawyer who came forward and talked about her personal experience of sexual harassment. She has been absolutely incredible in keeping this conversation going. She does so much work outside of her full time job, speaking with the media. She’s been incredible so big kudos to her.
To come back to that point that Zoë made Hayden, about including men in the conversation, how do you make things better while at the same time enforcing consequences and not letting abusers, largely men, although some women as well, get away with illegal behaviour? How do you keep the conversation going without necessarily descending into blaming and shaming?
HW: Well I don’t think there has been any blaming and shaming in the conversation in the legal profession as yet. I think that was something people were scared of. This has become a conversation that, and Zoë’s absolutely right, needs to keep that momentum going. Fundamentally if we want change, then the tone has to be set from the top.
ZL: Yeah I think there definitely is a culture happening in some parts of the profession where, especially the really serious sexual harassment, cases just get moved on quietly with a good reference, to another firm. Or the firm that they’re leaving doesn’t actually tell the new employer that this person has a huge history of sexual harassment or they go on and become barristers, they go out on their own. I’ve definitely heard of that happening a lot, I’m not saying it happens everywhere but as you’ve said, people don’t see the consequences. It’s just swept under the rug and the law firm doesn’t want the bad publicity of this all coming out so it’s all dealt with very quietly very confidentially and we don’t see the consequences.
HW: We’re also starting to change that.
How does the Law Society change that?
HW: Well because the Law Society can require that these sorts of things are reported to people when they arise. In the health sectors if a person loses their job for certain reasons, it’s not as explicit as sexual harassment, but if they lose their job for a certain reasons the employer is required to notify their professional of that fact.
So it almost becomes a public safety issue?
HW: It’s explicitly a public safety issue in the health profession, but the legal profession, if it wants to continue to be a self-regulating profession, needs to take that same approach.
Hayden, what do you see when you’re taking the temperature for this, because that does sound meaningful and that does sound like something that would have an effect on how people behave?
HW: If you consider that a lawyer has done something that amounts to professional misconduct, you’re required to tell the Law Society , but the definition of professional misconduct is, I think, fraud and it needs to be more explicit. If someone engages in misconduct and it’s serious enough that you want to end their employment or end their partnership, you should be required to report that to the Law Society .
Do either of you see the potential for concrete effects, with the momentum of the #MeToo movement, on legislation in New Zealand?
ZL: I’ve met with Andrew Little, the Minister of Justice, to talk about what I’ve learnt through the blog, and through private emails. It was amazing that he met with me, and he’s definitely taken the issue seriously. I could tell that he’s very genuine, he’s very concerned about it, so it’s great that we have the attention of him as a minister. Minister Jan Logie, who’s the associate minister, has been speaking at a lot of events with me and I know she’s also very concerned so it’s definitely on their radar.
I will have a little bit of a jab at the lovely ministers responsible for MBIE in terms of the health and safety. I’ve written to them about this sexual assault reporting tool. I just said ‘hey guys you know this is a huge health and safety workplace issue can you look into this tool and could MBIE run it? And then you’ll have all of this amazing data sexual harassment you’ll be able to deal with it internally in all workplaces not just in the legal profession’.
Tell us about the tool briefly, Zoë.
ZL: It’s a sexual assault reporting tool that was developed by three women in the United States who were raped when they were at university. It’s come from a victim perspective, and I think it has amazing potential to be used in New Zealand. Particularly it has this victim matching function so what happens is a victim will register online, and they’ll put their name and whatever details they want and they will name the alleged perpetrator, put in identifying details, so a Facebook or a LinkedIn URL so if there’s ten John Smiths, you know they don’t get mixed up. Then what happens when another victim registers against the same alleged perpetrator is that they get notified, whether it’s 2, 3, 4, 5, 10. I’m really keen to set up a version of this in New Zealand. Essentially victims would get notified anonymously, so you’d be told oh, there’s five other victims out there, and then you can choose to go to the next step and identify yourself to the other victims.
It’s kind of what I was talking about before with the whole strength in numbers thing, the victims are so much more likely to report whether it’s to your employer, to police, to the Law Society , go to the media, whatever it is you want to do if you’re doing it as a group. It’s terrifying doing it by yourself, and I think it’s totally unrealistic in a lot of cases, but if you have the support of others you’re so much more likely to be believed, sadly. We should believe every individual, we should take every individual victim seriously and investigate it properly but if you have huge numbers coming forward you can’t ignore the problem.
Through the blog I’ve definitely seen that there are quite a few serial sexual harassers if, you want to call them that, that have large numbers of victims, and they’re very senior people in the profession as well. They’ve been around for a long time, they’re doing this and obviously there’s been no consequences because they just keep moving up the food chain so I think that this could be revolutionary. One tool that’s very different from what we have that will hopefully make a huge positive contribution towards getting some of this stuff flushed out and bringing it to the surface, which will be really helpful.
But you’re not getting much pick up on that?
ZL: Well, I wrote to the health and safety ministers and they’re not going to take it up, I guess with anything in government it takes a while for the wheels to start turning so I don’t have anyone at the moment who’s willing to say yes we’re definitely going to do it and fund it. I’m looking into options in terms of setting up a charity, having a proper board, with experienced victim advocates and lawyers, run the tool, and get funding. That’s my next big project.
And what do you think, Hayden, in terms of the effect on legislation in New Zealand?
HW: The spotlight’s on the legal profession. The legal profession has to step up to meet this challenge, and if it doesn’t, then I wouldn’t be at all surprised to see change in the way the profession is regulated. We’ve always held our self regulation very proudly, and I guess we will see over the course of the next year or so whether or not that’s warranted. If not, I wouldn’t be at all surprised if this changed.
One more question, if either of you were sitting here with a young girl now, whether it’s a relative or a daughter and she was saying she wants to be a lawyer, what would you say to her?
ZL: I would say now probably is the best time to be going to law school and leaving as a graduate because we’re finally addressing this issue. I really hope that it’s only going to get better and not going to get worse. So I would say 100% still join the law. These young women can be part of incredibly positive change and make the legal profession an awesome place to work and hopefully retire old and grey in their 60s or 70s rather than leave in their 20s and 30s, which is what a lot are doing at the moment.
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