Make it stop

Research into bullying and sexual harassment in the legal profession can teach us valuable lessons about best practice for law firms. Angela Mazzone and James O’Higgins Norman lead the way

Researchers define workplace bullying as a systematic and persistent exposure to negative and aggressive behaviours at work, primarily of a psychological nature, with the effect of humiliating and intimidating the target.

Workplace bullying is characterised by repetition (frequent and repeated episodes over a period of time) and imbalance of power (either in terms of hierarchical structure or psychological) between the perpetrator and the target. Bullying constitutes an evolving and often escalating hostile treatment, rather than a series of discrete and disconnected events.

Unfortunately, bullying is a common phenomenon in many workplaces – and the legal profession is no exception.

In 2019, the International Bar Association (IBA) conducted a multinational survey of 135 countries and 6,980 respondents from across the spectrum of the legal profession (for example, law firms, in-house, barristers’ chambers, judiciary, government – of whom 67% were women, 32% men, and 0.2% non-binary/self-defined).

Findings show that experiences of bullying are widespread in the legal profession, with half of the women and a third of men reporting experiences of bullying victimisation. In 57% of cases, the bullying episodes were not reported by the targets.

Bullying in the workplace

Acts of bullying in the workplace can be difficult to pinpoint. Subtle behaviours can be common and, when occurring in isolation, may be framed as signs of uncivil behaviour.

However, these acts can still be undermining and stressful for the targets, and are defined as bullying if systematic and persistent.

Examples described by members of the legal profession include:

• Exclusion – for example, silent treatment, ignoring or excluding someone from conversations and social events, and being frozen out at work,
• Verbal abuse – for example, shouting, verbal threats and insults (for example, nasty nicknames),
• Overwork and undue pressure – for example, being pressured to work long hours,
• Threats to personal standing – for example, making nasty comments on someone’s physical appearance or personality,
• Withholding information and giving misleading information, which will, in turn, negatively affect someone’s performance,
• Being told not to bill working hours, so that someone more senior could take the rewards,
• Being denied opportunities for professional development, and
• Creating dysfunctional dynamics in the workplace – for example, playing staff members off against each another.

In recent years, the increased use of digital media has resulted in a new form of bullying in the workplace, referred to as ‘cyberbullying’.

Workplace cyberbullying can be defined as all-negative behaviour occurring through electronic means of communication that is either repetitive and long-lasting, or occurs one time but is intrusive, leaving the target unable to defend.

The inclusion of one-time acts is relevant since, in the online context, certain unrepeated acts – such as posting an embarrassing picture online – harm the target by the repetitive exposure to others.

Sexual-harassment distinction

Although sexual harassment constitutes bullying in some jurisdictions, in Ireland it is considered as a phenomenon distinct from bullying.

According to section 8 of the Equality Act 2004, sexual harassment is any form of unwanted verbal, non-verbal, or physical conduct of a sexual nature that has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

Sexual harassment could potentially target any human being, though most victims are female. International survey data collected by the IBA show that one in three females and one in 14 males reported having been sexually harassed in a work context (overall, 75% of cases were not reported).

Gender stereotypes

International findings also show that males are harassed to a lesser degree than females. It should be noted that, in many societies, it may be shameful for males to report sexual-harassment episodes. This is especially true in societies that perpetuate gender stereotypes in which masculinity is associated with dominance and femininity is associated with weakness and subservience.

Thus, males are expected to respond with passive coping strategies (for example, ignoring) to show that they are strong enough not to be bothered by the sexual-harassment episode. This might be one of the reasons why sexual harassment could be underreported among males.

Examples of sexual harassment

• Gender-based harassment refers to a broad range of verbal and non-verbal behaviours conveying insulting, hostile, and degrading attitudes related to someone’s gender – but mostly targeted at women. Some examples include denigrating comments against women, or comments that women do not belong in management.
• Unwanted sexual attention involves expressions of sexual interest that are unwelcomed and offensive to the recipient. Some examples include:
  –  Unwanted sexually explicit comments, questions and jokes, or unwanted flirtation, attention, glances, gestures, and stares,
  –  Repeatedly contacting the target or asking for a date in a harassing way, despite the targeted individual ignoring/denying the request,
  –  Referring to someone’s body inappropriately or offensively,
  –  Purposely touching or brushing up against the target.
• Sexual coercion includes bribes or threats about the target’s employment to ensure their sexual cooperation. Some examples include offering a promotion in exchange for sexual favours or threatening termination of employment unless sexual demands are met.

The internet provides a virtual environment for enacting sexual harassment behaviours. Sexual harassment in cyberspace includes offensive sexual messages or images actively initiated by a harasser toward a target, sexual remarks, and so-called ‘dirty jokes’. All these are considered harassing when they are neither invited or consented to, nor welcomed by the recipient.

Although individuals who are targeted online are not physically in danger, targets of sexual harassment might perceive threats to use physical force just as real as in face-to-face situations. The sharing of sexual images without consent has recently become a criminal offence in Ireland, under a law approved by the Oireachtas.

Workplace dynamics

Research has shown that bullying in the workplace should be understood as a systemic problem, which is related to the actions and reactions of the organisation, the individuals involved, as well as all those who witness the behaviour.

There are bystanders (that is, witnesses) who are willing to act and actively help and support the target. However, in general, it is very difficult for bystanders to stand up against this. Some reasons for inaction may be related to the fear of retaliation, fear of losing one’s own job, and to the belief of not having enough organisational authority to intervene.

In some other instances, the bystander might either ignore the bullying or frame it as a normative behaviour, especially when it is recurrent within the organisation without consequences or without the perpetrator being held accountable in any way.

The organisational response or lack of response to bullying in the workplace is critical. Where there is no accountability for bullying in an organisation, it can quickly become an entrenched problem.

In relation to sexual harassment, this phenomenon is often actively hidden by the perpetrators and, as such, might not be directly witnessed by any other co-workers. However, when bystanders are present, they can play a key role in disrupting and changing a workplace culture that fosters sexual harassment and other gender-based forms of mistreatment.

Organisational culture

The legal profession is dominated by a culture characterised by competition, profit, and high pressure. These factors, together with established hierarchical structures, significant power imbalances, and pressure to measure work input rather than output (for example, billable hours) can create a ‘toxic’ environment.

The culture of an organisation is recognised as contributing significantly to bullying and sexual harassment, and either inaction and/or ignorance by the organisation are contributing factors.

For instance, research has shown that legal professionals who generate high profits for firms are sometimes tolerated, despite their bullying behaviour, displaying immunity from firms’ anti-bullying policies. This feeds in, significantly, to organisational culture and is noticed and felt by employees at all levels in the workplace.

When bullying is prevalent, sexual harassment and gender discrimination also occur at a high rate. This indicates that a culture of bullying is likely to sustain and tolerate sexual harassment and vice versa.

Workplaces with a strong hierarchical structure, as is often the case in the legal profession, are more likely to experience sexual harassment (that is, superiors sexually harassing their subordinates), and the targets are more likely to normalise the abusive behaviours, framing sexual harassment as a normative ‘part of the job’.

In such workplaces, it could be acceptable (especially for men) to show their masculinity through aggressive and dominating behaviour. This contributes to a hyper-masculine and sexualised corporate culture, where sexist attitudes and gender inequality sustain and tolerate sexual harassment.

Mental-health outcomes

Research has consistently shown that workplace bullying and sexual harassment have adverse consequences on the target’s and bystanders’ physical health (such as, heart problems, sleep problems, low self-esteem, symptoms of post-traumatic stress, and burnout).

Employees who are targets of bullying and sexual harassment in the workplace also show increased intentions to leave their job, reduced job satisfaction, and low levels of organisational commitment.

Bystanders are also severely affected, and report negative mental-health outcomes (increased levels of stress) due to exposure to a toxic environment. Witnessing repeated episodes of abuse at work is associated with repression of empathy, desensitisation to negative behaviours, feelings of isolation, hopelessness, and ineffectiveness.

Voice your opinion

In early 2021, the Law Society will facilitate the roll-out of a survey to collect data about the nature, prevalence, and impact of bullying and sexual harassment in the solicitors’ profession in Ireland.

The survey process will be carried out by an independent research organisation and will ensure confidentiality and anonymity to all participants. It comes as a result of the IBA report, wherein a range of suggested measures on how the legal profession can effectively and proactively address workplace bullying and sexual harassment were put forward.

Included in this was a recommendation to gather data and improve transparency around these issues in the profession. Keep a look-out for communication about this from the Law Society in early 2021.

(The content of this article is based on recent research conducted in the social sciences. The present article does not aim to provide either legal information or legal advice.)

Intervention recommendations

• Raise awareness: targets of both bullying and sexual harassment might be uncertain about whether the abusive behaviour qualifies as bullying or sexual harassment. Therefore, strong prevention programmes place a focus on raising awareness of both phenomena and on providing tools and resources in relation to how to recognise and deal with abusive behaviours of various natures.
• Empathy training: such training, and personal and interpersonal skills training in law schools aimed to enhance feelings of concern towards others, does not just help ameliorate professional and social relationships, but can also encourage equality and respect in the workplace.
• Change firm culture through effective training: tackling bullying and sexual harassment should be a combined effort of both targets, bystanders and the firm. Develop and encourage participation in training aimed at tackling hierarchical relationships, gender discrimination, and sexism, and that encourages diversity. (Note: research indicates that only a minority of legal professionals (22%) take part in training programmes, and that these are not always effective in tackling bullying and sexual harassment. Anti-bullying and anti-sexual-harassment training should not be conceived as a once-off, generalised measure. Rather, they should be experienced as ongoing, evidence-based training, and should be suited to an employee’s role as much as possible.)
• Collaboration with experts: firms should consider regularly monitoring bullying and sexual harassment in the workplace, using workplace climate surveys, with distinct sections on bullying and sexual harassment. Based on the collected data, expert advice on how to tackle bullying and sexual harassment in the workplace, and what tools to use to measure this, can be sought out.
• Policies: recent findings show that bullying is more likely to happen in organisations without clear anti-bullying policies and procedures. Such policies should reflect the promotion of respect, dignity and diversity within the workplace. It is also crucial to promote clear and accessible written policies, guidelines and complaint processes.
• Tackling false beliefs: it is paramount to let go of the belief or attitude ‘to let sleeping dogs lie’ in relation to bullying and sexual harassment. Admitting that bullying and sexual harassment exists, and that everyone is doing their utmost to tackle it, is a sign of a proactive firm that cares for employee wellbeing.
• Resources and mechanisms of support: counselling services for legal professionals, who may be in distress because they have reported or are dealing with bullying and sexual harassment, is vital. For this type of support, solicitors anywhere in Ireland can call LegalMind. It offers ‘in the moment’ 24/7 support over the phone with a qualified, experienced and accredited counsellor or psychotherapist, and further mental-health support if required. The service is completely independent and confidential, and can be accessed by calling 1800 81 41 77.

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