On January 6, 2020, Harvey Weinstein walked into a New York courtroom to face five counts of rape and sexual assault. Three years after the #MeToo movement started, more and more people are talking about harassment and abuse. The legal profession is at the forefront of this evolving movement, and is tasked with defining the scope of the law as it relates to bullying and sexual harassment.
However, the legal profession itself is not immune to these concerns. In May 2019, the International Bar Association (IBA) published its landmark report “We Too? Bullying and Sexual Harassment in the Legal Profession.” The largest survey of its kind ever conducted by the legal profession, the report details the responses of nearly 7,000 respondents from 135 countries. Respondents were predominantly law firms (73%) and demographically nearly half of the respondents were European. The results of the survey revealed that the participants had been subjected to bullying and sexual harassment; One in two women and one in three men surveyed described having experienced bullying, while one in three women and one in fourteen men surveyed reported having experienced sexual harassment in the workplace.
The legal profession must uphold ethics and integrity, so that it can advise and adjudicate cases of bullying and sexual harassment. 3% of respondents identified themselves as working in the judiciary itself, including judges and administrative staff. Members of the judiciary revealed that 71% of women surveyed and 24% of men surveyed said they had experienced bullying. Their accounts of bullying included sarcasm and degrading language, undermining work output, constant, unproductive criticism, and abuse of power or position. One respondent, who was working as a judicial clerk in the United States, reported being yelled at, humiliated and ridiculed by her supervising judge.
The Bangalore Principles of Judicial Conduct recognize that the judiciary must work with moral authority, integrity and probity and recognize that the personal conduct of individual judges affects public confidence and confidence in the integrity and efficiency of the judicial system as a whole. While the Bangalore Principles do not specifically refer to bullying, it is clear that inappropriate behavior in the workplace by judges has serious integrity implications.
In addition to cases with colleagues, bullying has also been described as pervasive in open court. According to IBA survey data, attorneys and attorneys are 20% more likely than those in other legal fields to experience bullying from third parties, including judges. Lawyers have often described judges as rude, belittling and aggressive. Given the hierarchical nature of judiciary and the inherent imbalance of power in the courtroom, it may come as no surprise that a culture of bullying has developed.
Judicial workplaces can proactively address these issues by developing relevant policies, and conducting in-house training to ensure the vast majority of incidents are properly reported. The lack of reporting is often due to the offender's image or status, followed by concerns about repercussions. Respondents in judicial workplaces were found most likely, across the legal professions, to fail to report. Four out of five respondents from the judiciary believe that their workplace can do more to provide a safe and supportive workplace.
When bullying is reported, it can lead to little or inadequate response, including no punishment or response that actually exacerbates the situation. Respondents who described experiences bullying in the judiciary mostly viewed it as an unfortunate, but inevitable, part of the job.
In addition to the ethical obligation to eliminate inappropriate behavior in the workplace, there is also an effective case for doing so. Research shows that bullying seriously affects mental health and productivity, with many affected choosing to leave the profession entirely. In many countries the behavior of senior members of the profession is raised to a higher level, as it affects their juniors, who may be expected to follow suit. Bullying and harassment by judges can have serious consequences for the public perception of the integrity and authority of the profession as a whole. With the number of #MeToo cases being tried in courts, and the global legal profession confronting the rampant nature of bullying and sexual harassment in society, the judiciary must be at the forefront of reform.