Dear Patrick:

Considering the increased spotlight on sexual misconduct in the workplace these days, I'm curious what you think about the relationship between lawyers, drinking, and bad behavior? What should an employer be looking out for?

Sue in New Jersey

Dear Sue:

When the Harvey Weinstein story broke a little over a month ago, I don't think any employer—legal or otherwise—could have known how much broader and deeper the conversation about sexual harassment and misconduct was about to become. Forget the crazy-making velocity of news in general these days. The headlines about sexual harassment and predation alone are enough to make your head spin if you spend more than five minutes online. Newspapers and radio stations are now keeping running tallies of all the accusations against public figures and high-level executives that have been leveled PW (Post-Weinstein), and there doesn't appear to be any end in sight. We're in uncharted waters, and you are dead right to think it's an issue highly germane to a profession known for its heavy and hard drinking.

However, before we get into the nexus between liquor and lewdness, highballs and harassment, let me start by stating the obvious: Some people are just prone to offensive, inappropriate, or troubling behavior regardless of whether they are stone-sober or high as a kite. I've heard plenty of stories of egregious lawyer behavior that occurred in the absence of any intoxicants, so I wouldn't want anyone reading this to think they could eliminate the risk of sexual misconduct by canceling all happy hours until further notice.

That said, free-flowing booze is certainly a risk-factor for inciting behavior that can range from mildly annoying and inappropriate to wholly outrageous and legally actionable.

Why? Because that's what alcohol does—it disinhibits. It alters moods, personalities and behaviors. It gives people the “courage” and comfort to do things they otherwise wouldn't, and the foolhardiness and errant judgment to do things they absolutely shouldn't. When working as intended, it's why some people love it. When overconsumed or perhaps reacted to poorly, it's why some people come to loathe or regret it.

Stipulating to the premise that most lawyers are not sleazy and sexually inappropriate, it's important to remember that between 21 to 36 percent of practicing lawyers qualify as problem drinkers, and consequently are more vulnerable to the unintended behaviors and consequences that can accompany overconsumption. Furthermore, even those lawyers who aren't problem drinkers are significantly more likely than the general population to consume alcohol on a regular basis, and that, therefore, increases their odds of finding themselves on either the dispensing or receiving end of alcohol-fueled workplace misconduct.

Because it is impossible to forecast with certainty how a group of lawyers or law firm employees are going to behave in the presence of all those uncorked bottles, the problem for many employers is that by introducing alcohol into the context of work-related events or gatherings, they are also introducing elements of unpredictability and volatility into their risk portfolio. Yet law firms do it—almost universally—on a daily basis.

Why? Because lawyers, risk-averse as they would otherwise be, really like their alcohol. Furthermore, it's the way it's always been in the legal profession, with the historical calculation having been that the benefits of a drinking culture (bonding, networking, team-building) outweigh the risks. The question now is whether the math looks the same in a PW world. I would argue it doesn't.

Numerous studies have shown that workplace sexual harassment increases when alcohol is involved, with one study from Cornell examining the links between alcohol use and “gender harassment”—a form of sexual harassment that involves offensive or degrading remarks and actions usually directed at women by men. According to one of the study's authors, their findings suggest that “sexual harassment prevention policies may be less effective in work contexts characterized by a strong and permissive drinking culture.” To me, that makes sense on the most elementary, common-sense level.

In addition to alcohol increasing the likelihood of some sort of sexual misconduct or gender harassment, however, there's an equally troubling flipside to the equation as well: Problem drinking increases as a result of being sexually harassed. That's right, not only do harassed individuals have to suffer that indignity itself, but they then could be victimized a second time by the dysfunctional coping mechanisms that the experience may prompt them to adopt.

Research demonstrates that experiences of sexual harassment are associated with increased frequency of drinking, escapist motivations for drinking, heavy episodic drinking, drinking to intoxication, and use of prescription drugs (such as sedatives, antidepressants) and cigarettes. Moreover, ongoing sexual harassment is predictive of increased quantity of alcohol consumption by the harassed individual, a fact that is particularly problematic given that sexual harassment is often chronic in nature. Keep in mind, this is in addition to the psychological distress that numerous studies have linked to sexual harassment, including depression, anxiety, irritability, loss of self-esteem, and a sense of helplessness and vulnerability.

So what should law firms be doing to reduce the incidence and likelihood of sexual harassment or misconduct? That's a multidimensional question with a multidimensional answer that involves more than just alcohol. But drinking culture is a very significant piece of the puzzle. Law firm and legal department leaders should be asking themselves some difficult and sobering questions these days, including just how much risk they are willing to assume on behalf of the ritualized drinking behaviors to which they've been accustomed.

Have a question? Send it to [email protected] and I'll see you back here soon!

Patrick R. Krill is the founder of Krill Strategies, a behavioral health consulting firm focused exclusively on the legal industry. Go to www.prkrill.com for more information.