#UsToo?

28th Apr 2020

Jim Pearson would like everyone in the IP profession to enjoy dignity in the workplace.

Unless you’ve completely cut yourself off from society and all forms of news and social media, you will know that the words “me too” have acquired what some might refer to as a secondary meaning. The social media hashtag went viral in 2017 following multiple sexual abuse allegations against American film producer Harvey Weinstein, who has since been sentenced to 23 years in prison after being found guilty of rape and sexual assault. The “Me Too movement” is now a broader campaign against sexual harassment and assault, particularly in the workplace.

Just to be clear here, I should probably give some examples of what constitutes sexual harassment in the workplace. It might include:

Indecent or suggestive remarks;
Making jokes of a sexual nature;
Sharing, whether intentionally or otherwise, comments of a sexual nature about another person;
Questions, jokes, or suggestions about a colleague’s sex life;
Displaying pornography in the workplace;
Circulating material of a sexual nature (by email, social media or messaging platforms, for instance);
Unwelcome and inappropriate touching (placing a hand on someone’s lower back or knee, for example), hugging or kissing; and
Unwelcome verbal sexual advances, or requests/demands for sexual favours.

Not all perpetrators are senior heterosexual men, and not all victims are less senior women. However, women are significantly more likely to be a victim, and men are more likely to be the perpetrator. As a result, I’ve focused on this type of sexual harassment here, although many of my comments will apply to instances of sexual harassment where different genders and/or sexual orientations are involved.

Depressing statistics

As a middle-aged, white, male partner in a private practice firm of Patent and Trade Mark Attorneys, I can’t say that I’ve been on the receiving end of any sexual harassment in my professional life. But, as a father of four school-aged daughters, I am familiar with the types of behaviour that girls and women have to endure every day – including derogatory name-calling at school and casually made threats of sexual violence.

Are my daughters going to have to continue to battle against this as they move into paid employment? If recent stats are anything to go by, a young woman working today is more likely than not to have already directly experienced some form of sexual harassment in the workplace. In 2016, researchers from the Trades Union Congress and the Everyday Sexism Project found that 52 per cent of women had experienced unwanted sexual behaviour at work, including groping, sexual advances and inappropriate jokes. Among women and girls aged 16 to 24, the proportion reporting sexual harassment rose to 63 per cent. And yet, the vast majority of instances of sexual harassment go unreported.

Are we part of the problem?

But what about sexual harassment in the workplace within the IP profession? Media coverage on the subject of sexual harassment in the workplace seems to suggest that the legal profession harbours some of the worst culprits.

In March 2018, The Lawyer reported that 42 per cent of women in the legal profession said they had experienced sexual harassment at work, including inappropriate comments, propositioning and unwanted physical contact. The same month, the Financial Times reported that “in the two years to October 2017, the Solicitors Regulation Authority (SRA) received only 21 complaints of sexual harassment within law firms, and has received just two reports since then”. It seems that sexual harassment is widespread, but victims tend to take little or no action. This might explain why the FT chose to publish its findings under the headline “Women lawyers say sexual harassment is fact of life at UK law firms”. Indeed, victims tend to find themselves having to “just deal with it” without making a fuss.

Whether or not what’s going on in the legal profession as a whole is indicative of the state of affairs within firms employing IP professionals, I think that it’s inevitable that improvements can be made. Men in particular, but also women, underestimate how much sexual harassment there is in the UK, by quite some margin.¹ That has serious consequences.

Having a culture where low-level sexual harassment is tolerated – or propagated – by those managing the business is going to drive away talented staff. Victims of sexual harassment are more likely to move firms than take action.² Although the matter is now decades old, I know that one of my former female colleagues almost left our firm when she was on the receiving end of a series of unwanted advances from a more senior male colleague.

Members of senior management or “star” attorneys in the legal profession seem, historically at least, to have been able to effectively get away with inappropriate behaviour. Times are finally changing, however, with individuals in senior positions in some of the larger law firms in the UK finding themselves accused of less-than-professional behaviour
in recent years.³ That has the potential to cause serious embarrassment and reputational damage to their (ex-)firms.

On the flip side, having an open, inclusive and gender-diverse workplace (which will naturally reduce instances of sexual harassment) tends to make firms more productive, more profitable and better at retaining talent, as well as resulting in a better external reputation.⁴

What can we do?

Detailed guidance on dealing with sexual harassment at work has recently been published by the Equality and Human Rights Commission.⁵ If you’re in a position to make a difference in your workplace, I hope you will consider:

Making sure that your policies that concern sexual harassment in the workplace are appropriate, understood and put into practice;
Raising awareness – for example simply reminding all staff that there is a zero-tolerance approach to sexual harassment in the workplace;
Providing training on the subject, or access to training; and
Ensuring that those at the top of the organisation lead by example and call out others when they witness poor behaviour among colleagues, clients and suppliers.

If you’re in a management position and think that this is too tricky, not sufficiently important to tackle or just not your problem, then you should know that this issue is not one that is going to go away quietly. There is an active government consultation on whether the current laws on protecting people from sexual harassment in the workplace are effective. In the meantime, the government’s recommendations and comments following the “Sexual Harassment in the Workplace” report by the Women and Equalities Committee appears to encourage regulators to take a more active role: “Starting by setting out the actions they will take to help tackle this problem, including the enforcement action they will take; and making it clear to those they regulate that sexual harassment is a breach of professional standards and a reportable offence with sanctions.”

Organisational input

For the moment, instances of complaints being made against Patent Attorneys or Trade Mark Attorneys and escalated to IPReg, CIPA or CITMA are rare. However, if the SRA figures are anything to go by, a low number of complaints to a professional or regulatory body should not be taken to suggest that instances of sexual harassment in the workplace are correspondingly low.

IPReg currently takes the view that compliance with statutory and regulatory requirements rests firmly with the regulated entity/individual, meaning that they must take action to ensure they are compliant. Allegations of sexual harassment in the workplace should first be reported to someone senior or in HR within the firm (or, depending on the circumstances, reported to the police or independent legal counsel). If an allegation is made within a firm, IPReg expects the firm to investigate such an allegation and, if the matter is sufficiently serious to appear to be a breach of the Rules of Professional Conduct, to refer the matter to IPReg. The focus on any investigation by IPReg would probably be on the issue of integrity.

Female readers will no doubt tell me that all this is pretty standard stuff. But I wonder what male readers will think. Will we be lambasted for complimenting someone on a new outfit, or a new hairstyle? Can you comfort someone who is upset by giving them a hug? Is it now risky for two work colleagues, one senior and one junior, to be booked into adjacent hotel rooms when travelling on business, or to have an evening meal together? To some men in senior positions, this now seems like a bit of minefield. Most of us can readily envisage situations where a set of actions would seem innocuous, but the same actions in a different context might seem like sexual harassment.

If you really can’t tell the difference, my advice would be to adopt a cautious approach. However, I’d hope that most of us know how we should behave and have the capacity to be decent, respectful human beings.

Inevitably, some of us will get it wrong some of the time. For the most part, I would hope that this would involve a clumsy comment or doing or saying the wrong thing simply by not knowing the audience sufficiently well. Some of these things will be perceived as undesirable or inappropriate by the person on the receiving end, and that person will often find it difficult or awkward to do anything about the matter. However, if your workplace has a senior management team made up of people who are striving to be decent, respectful human beings, then calling out undesirable behaviour should be seen as a good thing. Challenging poor behaviour gives an opportunity for positive change and for the individuals concerned to learn and self-improve.

Personal experience

Pointing out the behaviour of others, particularly those more senior than you, is a scary prospect – but it can work. For example, a little while ago, I said something to a member of staff which I thought was harmless banter, but they later called me out on the matter. I was initially taken aback as I had been completely oblivious to having stepped over the line, but I soon appreciated that my comments were misjudged on that particular occasion. It took courage for that person to approach me, but I appreciated their honesty and openness. In fact, I think we trust each other a little more as a result of the way we both behaved. Organisations that have an open and honest culture, supported and promoted by senior management, will make such conversations easier. I’m convinced that’s healthier for everyone concerned.

If tackling things in a direct and informal way doesn’t work, a more formal procedure may be required. Ideally, there should be an agreed procedure for dealing with things properly and sensitively. If the behaviour is such that it could be grounds for dismissal or, worse, criminal prosecution, are the individuals in your organisation who might need to be involved (the alleged victim, the alleged perpetrator, HR people, line managers and so on) adequately equipped to deal with the matter?

On the subject of escalation, it’s often said that making an allegation of sexual harassment can end the accuser’s career. However, being on the receiving end of a serious allegation can also have potentially devastating consequences for the accused – everything from the end of a career to the end of a life.⁶

In practice, dealing with this in a proportionate, balanced and sensitive way for all concerned appears extremely difficult to get right. (I, for one, don’t want to be the catalyst that unfairly ends a career, or does worse, for anyone.) There needs to be change, but in my view the changes need to centre on promoting a healthy and productive culture in the workplace such that everybody is treated with dignity.

I’ve found this an extremely difficult article to write. However, I hope that I get people talking about the subject in a healthy and positive way. I’d like the culture within the IP profession as a whole to be one we can all be proud of. I hope you will join me in doing what we can to ensure that our workplaces in the IP profession are safe and happy places for all to work in by making sexual harassment a thing of the past.

¹ ipsos.com/sites/default/files/ct/news/documents/2018-03/international-womens-day-2018-global-misperceptions-of-equality-and-the-need-to-press-for-progress_1.pdf

² Just one example can be found here: rollonfriday.com/feature-content/mythical-sexual-harassment-free-law-firm

³ See examples here: natwestbusinesshub.com/content/legal-profession-tackles-metoo

⁴ catalyst.org/research/why-diversity-and-inclusion-matter/

⁵ equalityhumanrights.com/en/sexual-harassment-workplace

⁶ The sad case of the Welsh politician Carl Sargeant is a useful reminder here: theguardian.com/uk-news/2019/jul/11/who-was-carl-sargeant-what-were-allegations-against-him-walesAn earlier version of this article was published at ipinclusive.org.uk. The CITMA Review would like to thank the author and IP Inclusive for allowing republication.

Here’s where to get help

If you’ve been a victim of sexual harassment, or worse, or have concerns related to the subject of this article, please consider these actions:

Talk to someone you trust and can confide in about what’s happened.
Make notes about the incident, especially if recalling the incident is particularly upsetting.
If you have witnessed sexual harassment taking place within a workplace environment, report or call out the behaviour.
If you can, tell the perpetrator to stop the unwanted behaviour. You could do this in writing if preferred.
Find out if your employer has a policy in place that provides a framework for reporting incidents or complaining about the behaviour of others. If so, it should set out what to do and who to approach for help and support.
Seek help and support from these independent sources:
- LawCare – 0800 279 6888 (lawcare.org.uk)
- ACAS Helpline – 0300 123 1100 (acas.org.uk)
- Citizens Advice Bureau Adviceline – 03444 111 444 (citizensadvice.org.uk)
- The Samaritans – 116 123 (samaritans.org)
If you or someone else is in immediate danger, phone the police on 999. Call 101 to contact the police if the incident is not an emergency.