When It Comes To Sexual Harassment, If You See Or Hear Something, Say Something

We speak on behalf of our clients, but perhaps our colleagues don’t have the same value...

Is it our turn? Up to now, our profession has sidestepped the very public claims brought by so many women in entertainment and politics. That’s over now.

The Washington Post published an article about claims of sexual misconduct by Ninth Circuit Chief Judge Alex Kozinski.     Earlier this past week, the Presiding Justice of the Sixth District of the California Court of Appeal in San Jose, Conrad Rushing, resigned. The reason?

As the San Jose Mercury News reported, a confidential five-page report by a Sacramento law firm found that “…Rushing allowed male lawyers who worked for the court to telecommute, gave them more complex cases and didn’t subject them to comments about their appearances. Meanwhile, he had female lawyers pack his belongings before his apartment was fumigated.”

An unidentified male lawyer who had previously worked for the court was sorry that he had not spoken up about the justice’s conduct. Really? What stopped him?

Of course, it’s not only in the Golden State that this kind of situation happens.

What’s interesting about this story is the fact that this retired judge won’t be disciplined because the conduct happened before he took the bench. A loophole that others might have used or could use going forward?

California Supreme Court Chief Justice Tani Cantil-Sakauye has had her own #MeToo moments. No surprise there. She gave a couple of examples, like being called “honey and sugar and dear,” and one of the “girls.”  (I hear the term “girls” used to describe women who left girlhood long ago and I cringe.)

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What I especially loved about the Chief’s comments was that it all goes back to what we should have learned in kindergarten: “Keep your hands to yourself, don’t say anything you wouldn’t want said to yourself, and behave.” Perhaps we should all have a refresher course on these admonitions.

Let’s all agree that we need to rework a phrase that arose after 9-11, which applies to a variety of situations, not just preventing possible terrorist attacks, not just stopping potential arsonists from burning what’s left of this state, but speaking up when it’s important to do so.

So, it’s “if you see or hear something, say something.”

That goes for all of us. Not just women or men who have been on the receiving end of sexual misconduct, inappropriate remarks, whether of a sexual nature or otherwise. Regret over not speaking up and/or speaking out is crying over spilled milk. (Remember when our folks would chastise use for exactly that? Nothing has changed.)

We speak up for our clients, we speak out for them. Why don’t we speak up, why don’t we speak out for each other? For exactly the same reason that almost everyone shies away from getting involved.

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We’re afraid of retaliation. We’re afraid of losing our jobs, not getting to work on the “you bet your company case,” afraid of the power imbalance. And that’s what it is, it’s all about the power, who has it and who doesn’t.

It’s nothing new for women lawyers; the power imbalance is alive and well and always has been. It’s nothing new for lawyers of color, even more affected by that power imbalance than women are.

As ATL’s Elie Mystal noted in a recent post, the conduct is tolerated, condoned, because of the power of the person who is accused of sexual misconduct, bigotry, hostile work environment, or whatever else the claim might be.

The power of that person, whether it’s ratings, top producer, superb rainmaker, senior partner, or whatever, seems to give that person a pass. While the firm knows something should be done, it’s reluctant to take any action because if you balance the power of the victim versus the power of the accused, the deck is stacked against the victim. Perhaps that may start to change.

I’ve heard department managers, regional managers, and every type of manager whine about terminating an employee for misconduct. “But he’s such a star.” No, he’s not. He’s a creep who makes the company a lot of money until the first lawsuit is filed and the employer’s strict liability kicks in. There goes all that money that he ostensibly made for the company. As I told clients, my job was to keep that money from going out the back door, but when you have senior officers who don’t listen, won’t listen, who think the law doesn’t apply to them, who think that emails can’t constitute sexual harassment, there’s not much to be done. And California has had mandated sexual harassment training for more than a decade. So much for that.

What would be wonderful if lawyers who can corroborate, even to a little extent, what happened to a colleague would do so. Then it’s no longer is “she said, he said,” and as we all know corroborating evidence strengthens a case. What would have happened if that former attorney for the Sixth District Court of Appeal had spoken up? No one knows since it didn’t happen. Lesson learned, perhaps.

Granted that sometimes the inappropriate conduct occurs in private (e.g., Matt Lauer and his ability to lock his office door from his desk), but I refuse to believe that all the inappropriate conduct happens in private. The presiding justice asking the women attorneys to pack his belongings before his apartment was fumigated. Are you kidding me? I doubt if that task was in the attorney job description. In fact, I’m sure it wasn’t. Did the justice have not even a second thought, let alone a third or a fourth about asking women attorneys, on the taxpayers’ dime, to do so?

Looking the other way, looking out the window, looking at the floor, futzing with your smartphone, busying yourself with a pile of documents while a manager acts inappropriately to a colleague in front of you without speaking up, without objecting, without protesting makes you complicit in the conduct.

Do you talk to anyone about what you have seen and heard? We speak on behalf of our clients, but I guess our colleagues don’t have the same value.


old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.