Stephanie A. Scharf and Roberta D. Liebenberg recently authored a report for the Illinois Supreme Court Commission on Professionalism called Bullying in the Legal Profession: A Study of Illinois Lawyers’ Experiences and Recommendations for Change. The report describes the results of a large survey and subsequent focus groups and then makes recommendations for how employers can make changes to improve the environments in which their lawyers work.

While the report was not written for or because of women, it contains findings relevant to women lawyers. It found that, while 15% of male lawyers had been bullied at work in the past year, 38% of female lawyers were.

Of the women who were bullied in the past year, 40% experienced verbal bullying once or several times specific to being female—such as negative innuendos, insults, jokes, or even threats related to their gender:

Indeed, these findings led the authors to conclude: “By far, the strongest impact of bullying in the workplace falls on women lawyers. Women are almost three times as likely as men to leave a job because of bullying:”

Importantly, the authors also looked at whether there was an intersectionality effect of race and ethnicity and gender on the frequency of being bullied. They found that women of color and white women were about equally as likely to be bullied in the past year. That being said, 82% of the people who responded to the survey were white, and 6% of respondents declined to identify their race and ethnicity. We would likely need a more representative sample to conclude that white women and women of color are bullied equally throughout the legal profession.

In this week’s Comes Now, we take a look at the findings of the report and talk about what those findings mean for our profession, as well as for women in it. Because I couldn’t possibly do justice to the full report, this issue does not address the long-term impacts of bullying or recommended actions employers take also addressed in the report. But because it’s so rich in content and filled with excerpts in the words of survey respondents themselves, I highly recommend you read the full report.

What the Report Found

The Scope of the Report

The authors sought to answer certain “core questions” about bullying in the legal profession:

• When and where does bullying take place?

• How do lawyers react when they are bullied?

• What types of support do lawyers who are bullied receive from employers, judges, and others in a position to take action against bullying?

• What can employers, individuals, judges, bar associations, and others do to reduce the incidents of bulling in the profession?

To answer these questions, they conducted a statewide survey of 6,010 Illinois lawyers. (It was initially emailed to 55,295.) In order to ensure the accuracy and timeliness of the responses, the survey focused on a one-year period during 2022 and 2023, as opposed to an attorney’s entire career. After the survey, the authors then selected 48 Illinois lawyers and judges to participate in ten separate focus groups from January through March 2024 lasting between 60 and 90 minutes.

Although 67% percent of the respondents were provided by lawyers in law firms (including solos), 16% percent of the respondents were from government, 10% from corporate law departments, 4% from public interest and not-for-profit organizations and 1% from the judiciary and 1% from academia. (3% responded “other.”) I was happy to see responses from people working places other than private law firms.

The respondents were largely white and heterosexual.

Bullying Defined

Before getting into the findings of the report, it’s important to understand how the report defined “bullying.” The definition used for the report was:

The report expounds on the definition by explaining that bullying “may involve verbal aggression, nonverbal actions, acts of exclusion, harsh working conditions, physical harm, stalking, or other aggressive actions. It may take place in person or online. Bullying may involve repeated acts by one aggressor against the same person and/or against multiple people.”

The Executive Director of the Illinois Commission explains at the outset the word “bullying” was chosen over “harassment” for two reasons. First, workplace and anti-harassment laws and policies generally apply only to abusive conduct targeted as someone with a protected characteristic, and the authors wanted to capture conduct broader than what is typically recognized as harassment. Second, while there is now a consensus that children should not be allowed to bully other children in school, there is no such consensus about how those within the legal profession should treat each other beyond vague concepts contained in our ethical canons. The report therefore uses the word bullying to promote a paradigm shift within our profession that we have seen happen in our children’s schools.

The Findings About Bullying

Who was bullied

The findings of the report were quite sobering. The report found that 24% of all active Illinois-based lawyers had been personally bullied at work, with 13% experiencing bullying on multiple occasions. Extrapolating that result to the more than 55,000 active Illinois-based lawyers means that over 13,000 lawyers in Illinois experienced some form of bullying during a one-year period.

Specifically, in addition to the findings quoted above regarding women lawyers, the report found that (p.10), while bullying affects lawyers from all walks of life, it most profoundly affected the most vulnerable:

As the authors concluded: “The impact of bullying is greater on women lawyers, LGBTQ+ lawyers, lawyers of color, and lawyers with a disability.” p.54

One of the most compelling stories told by the report was the experiences of lawyers of color. A higher percentage of lawyers in every racial or ethnic group reported they were bullied in the past year compared to white lawyers. The authors did a regression analysis comparing the impact of race and ethnicity on the frequency of bullying that showed a significantly increased chance that lawyers of color will experience a higher frequency of bullying than white lawyers.

The types of bullying experienced

The seven most reported types of bullying were:

Of the lawyers who reported that they had been bullied in the last year, the largest percentage—66%—had experienced verbal bullying through insults, name-calling, shouting, and other disrespectful speech.

Who did the bullying

Importantly, the bullying reported did not just occur within the lawyers’ organizations. While 31% of lawyers identified the bully as a lawyer within their organization who had a more senior or high-level position, 33% of lawyers identified the bully as a lawyer external to their organization and 14% of lawyers said they were most recently bullied by a judge.

How employers responded

Unsurprisingly, lawyers reported profound professional, emotional, and physical effects from being bullied. Yet only 20% of lawyers surveyed reported the bullying to a supervisor, upper-level attorney, or human resources manager. The majority of lawyers (52%) described their employer’s response as either “not sufficient” or “totally unsatisfactory.” Indeed, the survey captured data from almost 150 lawyers who reported they had bullied others. 96% of them said they experienced no consequences from their bullying behavior.

My Thoughts

The report is believed to be one of the first wide-scale research projects conducted in the U.S. on bullying in the legal profession. It measured and studied the issue comprehensively and clearly and unambiguously makes the case that our profession has a problem with how it treats its members, particularly the most vulnerable ones.

Despite the remarkable power of the report, I found myself throughout struggling with the use of the word “bullying.” There are a few reasons for this. First, perhaps because of my age, the word bullying carries a lot of baggage. While I’m absolutely not saying that bullying at school or in the workplace should be tolerated—or that lawyers of younger generations should suffer because I did—the weight and history that the word bullying carries should be factored into our choice to use that term to describe what’s happening in our workplaces. It’s harder to get people on board that certain types of conduct are unacceptable if we disagree on terminology at the outset.

Second, the authors defined bullying based on the types of conduct the survey respondents described. Because this was a ground-breaking report, I don’t fault that decision at all. However, defining the problem by the responses to the survey led to identifying types of conduct that may only be considered “bullying” by certain readers.

Merriam-Webster defines bullying as “abuse and mistreatment of someone vulnerable by someone stronger, more powerful, etc.” Dictionary.com defines it as “the act of harassing, intimidating, or abusing others, especially habitually or from a perceived position of relative power.”

The Illinois report’s definition expands both of these definitions to include actions that seek to control others. To me, this small expansion leads to including conduct that would be difficult to regulate. For example, of the lawyers who reported that they had been bullied in the last year, 59% reported experiencing “harsh, belittling, or excessive criticism of the lawyer’s work” and 56% reported that they were expected to meet unreasonable work deadlines or work demands. Although I would never suggest that supervising attorneys should belittle their subordinates or give them unreasonable work demands, those seem like things that have an “eye of the beholder” aspect to them. While employers should absolutely monitor them, I wonder about doing so under the rubric of a “bullying” policy.

It took years for federal courts to recognize the offense of hostile work environment sexual harassment. Ultimately, they did so by holding that the offense had an objective and subjective component. To constitute that type sexual of harassment, conduct must be both objectively hostile to a reasonable person as well as subjectively perceived as hostile by the target of that harassment.

Obviously when one is conducting a survey there is no way to objectively measure whether a given respondent was objectively subjected to bullying. But before we start treating bullying as an offense similar in nature to hostile work environment sexual harassment, we need a common understanding of bullying. We can’t effect the paradigm shift called for by the Executive Director of the Illinois Supreme Court Commision on Professionalism at the outset of the report until then.

Beginning the discussion of what we deem acceptable in our workplaces and throughout our profession is without question one of the most important aspects of the Illinois report. Start having these discussions in your workplaces. Let the paradigm shift begin now.

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