Photo by Alice Donovan Rouse on Unsplash
Lessons I Learned Fighting Sexual Harassment
by Fabia Wong
I can still hear my boss, a senior lawyer, proclaiming his feelings for me as I sat across from him. Frozen silent in dismay, I frantically strategized about how exactly to reject him, the man who wielded complete power over my career at the time. I’m a litigator with eight years of experience, gained in Toronto at a large law firm and in The Hague prosecuting international crime. I’m also a woman of colour operating in an industry dominated by older, white men, and I have dealt with sexual harassment throughout my professional life. These experiences have involved unwanted touching, lewd remarks, and persistent unwanted sexual advances, and have ranged from a single incident, to conduct spanning the course of several months. They’ve involved colleagues, police officers, opposing counsel, senior lawyers, and in the most difficult of cases, a senior lawyer who was also my supervisor.
Each of these experiences has been burned into my memory. I remember how stupid I felt on realizing that a dinner meeting offered under the guise of mentorship was an excuse to come on to me in a dimly lit restaurant. I remember the stress of carrying out what felt like two full-time jobs: preparing for court, and avoiding the advances of a supervising attorney. I can still feel my heart thumping in my chest and the cold sweat on my hands in the instances I decided to confront the responsible individual personally. I remember feeling just as afraid in the instances I decided to report them.
At my lowest, I felt helpless and very angry. As a young racialized woman, I have already had to overcome a number of obstacles in order to achieve what I have in my career. The culture of the legal profession is a temple constructed in worship of the upper-class, white, Anglo-Saxon, alpha male. The further you deviate from that mold, the harder you must work to adapt, and the more you can expect resistance and setbacks. Women who adopt the aggressive approaches of their male counterparts are bitches; those that don’t are too soft to be real courtroom litigators. My successes have been attributed to the trope of the hard-working Asian drone; when my leadership abilities have been recognized, it was because I was not like other Chinese. I’ve witnessed Asian classmates who excelled academically fail to find jobs on graduation, being told that they simply didn’t “fit” with “firm culture”: in essence, the golf-playing, liquor-swilling boys’ club.
Underlying all of this is the (false) assumption that the stereotypical alpha male, the one who displays the traits of “toxic masculinity”, makes for the best lawyer. There remains the idea that aggressive, ego-driven, bullying behaviour is desirable in an advocate, and that if you can’t take it or you don’t like it, you’re not cut out for the profession. There’s also a perception that clients wish to hire loud, aggressive lawyers who will in turn be the most effective at bullying opposing counsel. This notion is changing at a snail’s pace, though the influx of young women into the profession is encouraging. Still, the senior ranks of the profession are stacked with men and we continue to face an uphill battle.
Many of us, when facing bullying or sexual harassment, find ourselves lost at how to assert our right to a safe workplace. Even where there are mechanisms in place, employees will likely find themselves negotiating a set of rules that can be confusing even for trained professionals. It was for me. When I graduated from law school in 2007, I never imagined I’d have to use the skills I had learned in my own service. I’ve since learned better, and it turns out I wasn’t as helpless as I initially felt. There were things I could do in order to advocate for myself. I’ve collected the lessons I’ve learned through experience and set them out here. Ultimately, finding a way through comes down to being informed about your rights, and the framework you operate in – being aware of how to use the system, and what to consider when that system is failing you. Information is power, and in the fight against abuse of authority, it is a weapon we must avail ourselves of.
Before it happens:
The fight for a harassment-free work environment begins before any misconduct occurs. While management should set out clear policies and to enforce these policies effectively, we can prepare by informing ourselves.
- Understand the law.
You should start by researching the laws and regulations that apply to all employers in the jurisdiction where you live and work. Both occupational health and safety legislation and human rights legislation typically address the topic of sexual harassment in the workplace and are the first place to look. This may sound onerous but there are three general things to look for: express prohibitions on sexual harassment, definitions on what conduct constitutes sexual harassment, and policies and procedure employers must implement in the workplace.
Have a look to see whether or not your employer has taken the necessary measures, and don’t be surprised if your employer has only a limited understanding of their obligations under these laws, including the common prohibition on retaliating against an employee who is attempting to enforce their rights.
- Understand internal rules.
Once you join a new workplace, or become a member of a professional organization (a union, a professional association, like a bar association), become aware of the code of conduct and disciplinary regime, if any, and particularly the definitions of misconduct. These definitions can vary from place to place. Knowing what applies in your environment will help should you ever find yourself in a position of wondering whether what just happened to you was actionable. Are there resources available to you? Sometimes larger organizations may have neutral specialists (in human resources, or a staff welfare officer) you can speak to who do not have reporting obligations themselves. This could be useful if you need a sounding board, advice on the process or support, but are not ready to take the leap of reporting.
Become familiar with the procedures in place. For example, if you report will there be an automatic investigation? Who will do the investigation? How will the information that is collected during the investigation be kept confidential? How will you be informed of the results of the investigation? What protections are in place to prevent retaliation against a person who has made a complaint? Understanding the answers to these questions will help you make the most appropriate choice for you, when deciding a course of action.
- Know your own obligations.
You should also be aware that often, if you advise a colleague or a mentor, that person might have an obligation to report what you’ve told them to their own supervisors. Similarly, if you witness or become aware of inappropriate behaviour, you may have a duty to report upwards.
After it happens:
Each experience of sexual harassment is different and there is no magic formula for “winning” a case. Whatever path you take, you are the one who will face the most significant consequences in your life and career, and so your decisions and actions should be true to you. For that reason, take non-expert and even occasionally expert advice with a grain of salt, especially if that advice comes from within your organization. People may have an agenda they want to advance through you; managers who are vested with the responsibility and authority to handle such situations may in fact be inept. I’ve been able to walk away without regret each time I acted in accordance with my own principles.
- Keep a detailed record.
Whatever happens, write it down and write it down in detail. The sooner you start, the more likely you’ll be able to create an accurate and complete record. That includes dates, places, and precisely what was said, verbatim, to the extent you can remember. Odd turns of phrase can serve as compelling evidence. Increasingly, communications are just as likely to be recorded in text messages, emails, phone call records and social media posts, which come with helpful timestamps. Save them all.
Are there witnesses to any humiliating scenes? Note their names down as well. Do you feel that there have been reprisals against you for not acquiescing to the demands of your harasser? Write down any cuts in hours, reductions in responsibility or the like, and keep any paper records.
It’s important you do this even before you decide what course of action to take. If your complaint is ever investigated, your credibility will necessarily be assessed. The notes will be invaluable even if you later decide you want to shelve the whole thing. Your record does not only include your notes: contemporaneous communications you sent to someone close to you can come into play as well.
- Say no.
Say no. Say it clearly. Remember where, when and how you said it and write it down. This is not an attempt to shift the burden to you, the victim; this is about safeguarding yourself against the defence of consent, one that almost inevitably will be used by your harasser. If the person who is harassing you is a superior, it’s a terrible position to be placed in – there is no doubt that you should not be repeatedly subjected to sexual advances from someone in a position of authority. That doesn’t make saying no clearly any less important. In the event you elect to report the misconduct, appearing before a tribunal or a panel of investigators is an intimidating experience, and this action will be your best shield.
- Identify your ideal outcome.
What do you want to happen? This is a complex question and one that requires a great deal of consideration. Our notions of justice are traditionally very limited. It’s important not to limit yourself when thinking about possible outcomes. The starting point is identifying what is important to you. For some, it’s about feeling safe at work again. For others, it’s about sending the message that misconduct has repercussions or attempting to prevent the harasser from following the same pattern of abuse with someone else. It can be about stopping the behaviour and forgetting it ever happened. When my harasser was my boss, I was afraid at work, and I was furious that his position afforded him control over my professional life and my well-being. The most important thing for me was to take back that control, and to let him know that my dignity was not negotiable.
Issues to consider are whether you want to stay in your position or whether a move is acceptable to you, the level of publicity you’d be comfortable with, whether you are okay to go through an investigation, whether you want to confront the offender personally, with someone accompanying you or not at all, and whether you think reconciliation is possible. The first factor I mentioned is important to think about; whether fair or not, management will often suggest the easiest solution for them: moving you, the complainant. If this is something that is not acceptable to you, be prepared to refuse.
I occasionally went into meetings with senior management about a situation I was in without being prepared with possible solutions. Those meetings invariably ended without any concrete next steps proposed. Now, I have realized that had these been meetings about a case I was working on, I would have attended with two or three proposed strategies. It should not be the case that you, as the victim, have to find your own way out of the quagmire of an abusive situation; management should be trained and willing to deal with complex human resources issues. But reality often does not reflect the ideal. Frequently management will view you as a problem rather than a victim or someone to be protected from inappropriate behaviour. Acting as your own agent, in your interests, is one way to feel less like a victim, and to take some power back into your own hands.
- Identify allies.
Take note of who could be an ally in management in the event that you want to report. I learned about the importance of this the hard way; it is a subtle and complicated thing to achieve. Finding someone who is worthy of trust is not about a fancy title or position, nor is it about friendship or likeability. The most effective allies I had were those who have demonstrated respect for rules of conduct and regularity; who were not known for bending the rules for friends or favoured staff, or for asking for favours themselves. It’s about identifying who has the courage and integrity to make the unpopular but correct decisions.
- Seek help.
Two types of support are vital to remaining healthy through any ordeal: personal support, from friends, partners and family, and professional support. Being believed and emotionally supported by those close to you is incredibly important to replenishing your strength. Professional help – legal and health-related – is more about gaining objective and expert advice on your experience, and obtaining the resources you need to feel safe and healthy. The stakes are high so it is important to avail yourself of objective third-party advice, whether you choose to follow it or not. In my own experience, maneuvering through administrative hurdles on top of a full-time job was often overwhelming. Bouncing ideas off of other lawyers who were able to maintain an objective distance from the situation at times reinforced my own view of things, or occasionally and even more helpfully, helped reel me back to reality, preventing me from making rash decisions based on how I was feeling at a particular time.
I was fortunate to have the unwavering support of loved ones, but I otherwise kept things close to the chest, afraid of what might happen to my career if the information was made public. When things were at their worst, my health began to suffer and I consulted with health-care professionals. I’m glad I did – I only wish I had sought help sooner. They say doctors make the worst patients; the same can probably be said for attorneys making the worst clients. It is always difficult to take a step outside of your own subjectivity, but in any subsequent investigation it will likely be an objective standard like reasonableness that is applied, so getting that outside opinion is vital.
- If you decide to report, prepare.
If you decide to report upwards, formally or informally, you will need to develop a thick skin. People you expect to be supportive may not be. Some may not believe you, or will think that you have not acted correctly. Unless these people are involved in the adjudication of your complaint, their opinions don’t matter in the end, but when you are already low and vulnerable, it can be jarring, so be prepared.
Although getting to the point where you want to report may have taken a lot of time and energy, it is not the moment to lower your defences. It is imperative that you navigate this part of your journey cautiously to protect your right to appeal or other avenues, in case you want to file a complaint before another body. Now would be the time to seriously consider seeking legal counsel.
- Try thinking like a manager.
One potentially helpful exercise is to imagine yourself in management’s shoes. First, objectively evaluate your role in the office and your contribution to it, do the same for your harasser, then finally write down the key points of what has happened between you. Put it away for a day. The next morning, look at your notes with fresh eyes, as if you were your boss. What are the questions you can anticipate? How would you solve the situation, if you were in the position of authority? This exercise might help you step outside yourself for a moment, and to identify issues that will likely be addressed at your meeting with management, allowing you to better prepare.
- Beware of confidentiality.
Beware of “confidentiality”. Management has the vested interest of protecting the organization’s reputation, and so may try to use the all-powerful rubber stamp of “confidentiality” to silence you, in order to contain the damage. As a victim, however, you should be able to have access to support, which requires that you share details with others. If management attempts to impose confidentiality, ask for their justification, which may be a rule in the administrative procedures, and then seek legal advice. You should not have to go through this alone.
- Protect your interests.
There are few scenarios more intimidating than meeting with a senior person one-on-one in order to report the misconduct of another senior person. To this end, take steps to protect yourself. Unless there are strict rules to the contrary, consider bringing someone you trust to the meeting, or a neutral third party such as a staff welfare officer or human resources person. They can help take notes of your meeting. You may also wish to insist that more than one senior manager is present. This may seem counterintuitive – more managers usually means more stress – but this measure will safeguard the record of what you have to say and reduce the risk that your story is buried. I once made the mistake of reporting to only one senior manager who, while an empathetic listener, ultimately did not offer guidance or take concrete steps in response to my complaint. Later on I learned that there were other managers who would have acted differently. In retrospect, I would have had them all in the same room so that they could help each other (and me) arrive at the best solution.
- Protect your legal rights.
Although your employer has an interest in complying with the law, it also has an interest in protecting itself from claims brought by current or former employees. As a result, you cannot rely on your employer to give you information about whether it has breached the law or whether it is potentially liable for the harassment you experienced. You need to be aware of potential deadlines that may affect your ability to commence legal proceedings against your harasser or your employer. Those deadlines can vary depending on the law or the forum that applies to your situation, and they can also be complicated to interpret. Similarly, documentation you sign when you stop working for your employer, especially in exchange for some type of payment, can significantly limit your ability to pursue a claim. In these types of situations you should seek your own independent legal advice
Perhaps the most important thing I learned from my own experiences is that there is no contradiction or conflict between being acting with courage, and acting in your own best interests. When the dust settles, it is you who will have to live with the consequences of your choices. Those consequences can often be serious and lasting and that makes being prepared and informed all the more crucial.
About the author:
Fabia Chenivesse-Wong. Fabia studied and practiced law at a regional law firm in her hometown of Toronto, Canada before moving to The Hague, the Netherlands, in 2011. For six years she worked for UN tribunals, prosecuting international crime. Currently based in the south of France, she writes about gender, race, culture and the law.
“With thanks to Christopher McClelland for his valuable input.”