In 2017, the #MeToo movement swept through the globe, bringing a fresh focus on sexual harassment in the workplace. It brought with it awareness and scrutiny on workplace behaviours, most of which were unfair to women employees. Perhaps the most shocking was the revelation that law firms and corporate law departments were just as susceptible to incidents of sexual harassment as other fields.
According to a global study on bullying and sexual harassment in the legal profession, about one in two female respondents and one in three male respondents had been bullied in connection with their employment. One in three female respondents had been sexually harassed in a workplace context, as had one in 14 male respondents.
Sexual harassment is any behaviour that is unwelcome or offensive, of a sexual nature that includes physical conduct, display of visual material and communication whether written, verbal or non-verbal or electronic. According to the Law Society of Kenya, it is also any direct or indirect requests for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express promise of preferential treatment in employment or threat of detrimental treatment in employment.
Sexual harassment can take many forms and may involve different genders. It can be male-to-female and vice versa, although it could also involve male-to-male or female-to-female employees. However, most of the victims are usually also vulnerable in some other way, often by nature of being subordinates and these may include junior associates, paralegals, interns or pupils.
When MaryAnne Mueni, 25, got an acceptance email to be a pupil at a prominent city-based law firm, she was elated.
“It was like a dream. I went for an interview and some of my campus mates were also there. I didn’t think I stood a chance against some of them as they were the first-class material of our year. I fumbled a bit with the questions, but I tried my best. I think they gave me the chance because I could speak a foreign language - French,” she says.
She says her pupil master was very helpful. He would go out of his way to teach or show her things she didn’t know.
“He was in charge of the commercial department where I was first placed. He taught me a lot, and it was okay until he started getting over-familiar. He got too touchy, sometimes he would make very suggestive comments. At first, I thought he was just being friendly, so I didn’t want to overreact. But soon, it became too much. Thankfully, my pupilage period came to an end around the same time, but they let me continue working while I waited to be admitted. After my admission, I moved to a different department,” she says.
Leah, on the other hand, was not as lucky. She joined a law firm as a junior associate from another one where she had been interning for two years.
“Immediately, I noticed a senior partner was hitting on me. I didn’t think much of it at first, but he became more aggressive and less subtle with time. I mentioned it to a colleague who had been there a bit longer. She hinted that I should play along like everybody else. I later learnt that he had a reputation with young lady advocates in the firm,” she says.
“At some point, I got tired of his comments and I complained to the other partner. He promised to talk to him. However, nothing changed. In fact, he got worse. But not only him, slowly everyone in the office became distant or cold towards me,” she recalls.
“In the end, I left. They didn’t fire me...but they made me so uncomfortable I had to resign. That way, they were not responsible in law,” says Leah.
One may wonder why sexual harassment would happen within law firms and law departments and yet, lawyers more than any other professionals know or at least should know the law better.
According to Mr. Francis Kioko, an advocate of the High Court who works at Munyao Kayugira and Company Advocates- a Law Firm whose focus in practice is sexual harassment among other areas- this is mainly because very few victims of sexual harassment ever come out to report.
“The main reason for this is because of reputational damage especially if the victim decides to initiate a legal process but ends up unsuccessful. Since the employer is also an advocate, such victims may end up with a bad name within the legal field, and that can be really damaging, especially on their reputation.”
This sentiment was backed up by Mr. Ombo, also an advocate of the High Court from Ong’anya Ombo Advocates who said that limited employment opportunities within the legal field contributes significantly to victims of sexual harassment not reporting their perpetrators.
“There are only about 8000 LSK members within Nairobi. Almost everyone went to school with each other. It’s a small field, information spreads fast. Sometimes, once a victim decides to go public about their experience, they may end up having to look for a new firm for whatever reason. Seniors know each other, and they are the ones who own these firms, when your name is out there, you might find it hard getting another firm,” he explained.
The legal profession also has some unique qualities that create additional challenges for victims of sexual harassment in law firms. For instance, the conservative culture of the legal profession, focus on confidentiality and its hierarchical structure mean that any efforts to fight sexual harassment are often frustrated within the law firms themselves. Some law firms are structured as partnerships, in which case they may exist and works as small autonomous units within the office. This just means less accountability or supervision. With less supervision, people are more likely to violate the rules, because they know they will not be easily caught.
“Most of these law firms have no Human Resource departments,” says Mr. Kioko. “Without proper HR departments, the only channel of complaints is with the proprietors, in whom the ultimate decision lie because they are the owners. Sometimes though, they are also the perpetrators.”
Some of them also simply lack Sexual Harassment policies within their firms, probably because of their small number of staff. On average, most law firms have less than ten staff and so, don’t bother to put in place these policies or to train their staff on them.
Sometimes though, victims are afraid to be labelled dramatic. In sexual harassment claims, it is important that the behaviour be unwelcome, and this can sometimes be hard to prove.
According to Mr. Ombo, “victims risk being ridiculed or being made fun of especially if there is no one to back up the claims. Other times, even if there is a witness, they may dismiss them as overreacting and they can be labelled dramatic. Without corroboration, it is hard to prosecute such cases successfully.”
Although it might take a while to see progress in the fight against sexual harassment within the legal profession, it is encouraging to see certain individuals and institutions in Kenya like ‘Dear Law’ who courageously and bravely speak about it and fight to change the profession for the better. They speak on behalf of the victims and encourage some more to come out and report their harassment.