Canadian Lawyer

May 2024

The most widely read magazine for Canadian lawyers

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Page 49 of 51

48 OPINION BACK PAGE The persistence of sexual harassment A reckoning is happening in our profession, and it is time to take concrete steps to prevent sexual misconduct Sara Forte is an employment lawyer, mediator, and workplace investigator with Forte Workplace Law, a boutique law firm in BC and Alberta. She also developed respectful workplace workshops through StandUP Teams. common theme in my personal experiences of sexual harassment as well as in the sexual harassment cases we advise on or investigate. A striking theme in the stories shared in the Star article was power imbalance. Power disparity is a fundamental feature of most sexual harassment cases. Differences in power are built into our profession, particularly with the requirement for principals to supervise and sign off on articles. Racialized lawyers and lawyers from other underrepresented groups can also be at a power disadvantage. Every lawyer has the power to stand up to sexual harassment in our profession. We can advocate for legal employers and regulators to drive change. We can also act individually. Bystander intervention – where lawyers who "see something, say something" – is powerful. This is made easier with clear policies and bystander intervention training, but even if those are not happening in our workplace, bystanders can still intervene. There are many forms of bystander intervention. Many of us think of it as calling someone out publicly in the moment, which can feel intimidating and inaccessible. However, there are many indirect ways we can intervene as bystanders. For example, we can follow up with the victim to let them know the conduct was witnessed and offer support in reporting. A multilevel approach is needed to move the needle on workplace sexual harassment in the legal profession, and each of us has a role to play. Whether it is advocating for regulators to adopt professional conduct standards prohibiting sexual harassment, asking firm leadership about policies, training, and guidelines on alcohol use at work-related events, or taking action as a bystander when we witness sexual harassment, every lawyer in Canada has the power to stand up to sexual harassment. A RECENT Toronto Star investigative report about the prevalence of sexual harass- ment in the legal profession caused shock- waves across Canada. On social media, some reacted with surprise and shock, while others shared similar experiences or incidents they had witnessed. Many lawyers across Canada read the Star article with curiosity (and maybe some with fear) to see which firms were named and which partners were implicated. Change will happen in our profession only if lawyers consider with the same curiosity how they can stand up to sexual harassment. The stories these brave lawyers shared publicly were not surprising to those of us who work as employment lawyers and workplace investigators. We regularly advise law firms and their employees, including lawyers, on workplace sexual harassment. It is definitely "still a thing," and we all have a role in making change. Legal regulators can take a stronger stance on sexual harassment by lawyers. In July 2023, the Law Society of BC made extensive amendments and additions to the sections on harassment in the annotated Code of Professional Conduct. For some time, this code has prohibited lawyers from sexually harassing "any person." The recent amendments made this language more explicit to prohibit sexual harassment of "a colleague, employee, client or any other person." Annotations to the Code now include lengthy and descriptive lists of the type of conduct that could constitute sexual harassment, a note that lawyers are expected not to condone or be wilfully blind to sexual harassment, and express inclusion of off-duty conduct as potential grounds for discipline. Providing free CPD courses about sexual harassment and/or requiring mandatory training are additional opportunities for regulators to drive change. Law firm leaders have many reasons to act – professional, moral, ethical, and financial. The recent Star article underlined that reputational risk is real. I understand from Star journalists Robert Cribb and Emma Jarratt that they continue to investigate and intend to publish a series of articles. Now that a few survivors have gone public, it is fair to expect more will follow. Policies seem like a basic first step, but many organizations do not have them. Firms should ensure they have a policy that expressly addresses workplace sexual harassment, stating that it is prohibited, giving examples, confirming that it will have consequences, and including a transparent mechanism for reporting and investigation. Training on the policy and bystander intervention training should also be done periodically. Of course, policies and training work only if they are complied with and enforced. Complaints should be taken seriously, and employers must follow the policy. Finally, firms should acknowledge and address the role of alcohol in increasing the risk of sexual harassment. Alcohol is a

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