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Tuesday, June 20, 2023

Tip of an Iceberg?

The following is by my FIU colleague Kerri Stone, who teaches and write on employment discrimination, including the atmospherics within law firms and other white-collar professions. Her book is Panes of the Glass Ceiling (Cambridge 2022).

In the weeks since the law firm of Barber Ranen was somewhat blown up after its two named partners were forced to resign, I have been sent numerous emails with articles about the scandal by friends. “Isn’t this what you write about,” they asked. “Doesn’t this scandal illustrate the unspoken beliefs that pervade the workplace?” Of course, the sexist, racist, homophobic, and antisemitic emails unearthed by the partners’ former law firm, Lewis Brisbois Bisgaard & Smith after they left that firm brought to light the private communications between Barber Ranen’s managing partner and the firm’s chief financial officer.

Predictably, the two publicly apologized as they made their exodus from their eponymous firm, disavowing their words and noting that, of course, they were not reflective of their character or of their values. “This is how they speak when no one’s around,” a friend noted to me. “They said the quiet part out loud. What are your thoughts?” My first thought was, honestly, that this, as a news story, was low-hanging fruit. The phenomenon of lawyers and other professionals who purport to be civil-rights minded or enlightened and then proceed to speak in private spaces in a manner that degrades, demeans, and devalues whole groups and individuals is as abhorrent as it is time-worn. There is no novel lesson to be gleaned here,

However, maybe the food for thought here is some consideration of just how frequently this kind of banter goes on behind the scenes. While some may lament the fact that private communications between colleagues working in the trenches on a case—never intended to see the light of day—could be exposed and published as these were, this incident, rare though it may be, offers an interesting window or insight into what goes on every day. While the monikers, language, and tone used in these communications may confirm some people’s worst fears about what self-professed enlightened professionals really think of or call their clients, colleagues, or opponents, we have to pause and ask just how prevalent these kinds of communications are.

And maybe that is where the real story—and the real discussion is. Ought we presume that where members of a given group do not occupy a secluded space, be it on a case team or a workplace friend group, if no one is willing to police the space, there is a fair chance that the space is rife with jokes, epithets, and crass, discriminatory put-downs? How fair of a chance? If we are only seeing what’s on the surface, how much would it aid us to form an understanding of how much pejorative, discriminatory speech goes unchecked, shielded by a shroud of silence, complicity, and a false sense of security?

According to Lewis Brisbois, the discovery of the offensive emails was spurred by an anonymous complaint that it received about these attorneys. Hopefully, attorneys and other employees are pausing to think about how they have communicated on not only organizational emails, but on group texts, at lunch tables, and at late-night meetings. While the presence of a member of a group that would be targeted in some way in a private professional space might deter hateful workplace speech, the very lack of such a presence is what likely helps to instill a sense of safety and security in the speakers.

This story ought not fade from memory too quickly; it contains many lessons. I plan to reference it when I teach about employee privacy and teach about company emails and compliance reviews (using AI or other programs to screen them). There is a role for this story in many Employment Law, Employment Discrimination, and Professional Responsibility classes. And, of course, hopefully outside the classroom, this story ill come to mind when those privileged to occupy (at least semi-) private workplace spaces—virtual or actual—will think about it and be better bystanders/upstanders when they bear witness to behavior or to speech that would not reflect well upon them or upon their values if it saw the light of day. 

Posted by Howard Wasserman on June 20, 2023 at 08:15 AM in Employment and Labor Law | Permalink


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