Friday, February 18, 2011

Hegemonic Deterrence

People in various workplaces are confronted with a number of challenges related to discrimination and harassment. In many ways, they are sent signals to just keep quiet and "put up with it." When they don't, they face retaliatory measures - including lateral transfers; loss of responsibilities; being sent signals that their future at the workplace is in doubt even if their work is nevertheless more than satisfactory; and, of course, termination.

These signals can be overwhelming and may stop someone from pursuing a legitimate grievance. Even when they do, there is sometimes a tendency to feel (or at least leave an impression that they feel) guilty for saying something, "for causing trouble."

A recent lawsuit was filed in the United States Federal Court for the Southern District of New York. The plaintiff, Jaime Laskis, is a lawyer who formerly worked at the New York City office of a Canadian law firm, Osler, Harkin, and Harcourt, LLP. Her claim alleges sex discrimination and retaliation for drawing attention to the alleged discrimination. You can read more about the action here (the Toronto Star article online previously contained a link to access a copy of the original complaint filed with the district court but seems to no longer be available).

Something that Ms. Laskis said to the Toronto Star illustrates the hegemonic deterrence against speaking out (as well as to the demeaning experience of being discriminated against). She says:
“It's a horrible situation. It has been a really difficult process. I'm not this kind of person. I'm not a troublemaker. I'm not even a loud voice. I just keep my head down and do my job.”
Her words are instructive and speak to the larger narrative and construction in our culture(s) of those who supposedly complain about wrongful treatment. One can see this illustrated in a number of films. They are (made to feel like) "troublemakers" and/or "whiners". Such troublemakers are people with loud voices - read: "loud mouths". They are people more interested in poking their head up merely to get attention simply for the sake of fulfilling some need to self-aggrandize. They are not people who are interested in doing their job.

The reality is of course, someone who has a bona fide claim of discrimination is not a troublemaker for raising the issue through a legal claim or through internal channels at the workplace. They are merely drawing legitimate attention to unlawful and discriminatory conduct. They are, in a sense, whistleblowers, for they call attention and raise issues about wrongdoing that may not be known and need to be addressed. By this, I don't mean that it is not known more generally that discrimination could or does happen in various workplaces, including law firms, but that it is, if proven, happening in a specific firm during a specific period and perpetrated by specific person(s). It moves from the general and abstract (discrimination happens) to the tangible and specific which may be subject to redress. Blowing the whistle (which, yes, also serves a personal and legitimate interest), has a larger utilitarian purpose. It serves notice to some that similar conduct may be subject to court action - not to mention the (potentially) ensuing damage to the reputation of the individual and/or the firm. It also sends a signal to those inside the firm or other workplace who are being subjected to this treatment that they have options.

Using a metaphorical "loud voice", one shatters the expected silence that the discriminated and harassed are expected to endure through hushed tones and a supplicating demeanor. In other words, loud voices aren't necessarily the ones that are discordant. What is discordant are statements made to or about women (or other marginalized groups) that sound like the following. A senior partner at the firm (allegedly) states to an employee who is going to attend graduate studies in law: "that's great you are going to Harvard - you might meet some pretty women pretending to get a legal education." Or, even more priceless (and again allegedly) said by the same partner with respect to female employees taking maternity leave:
[T]hat's why I hate working with women, because they just get pregnant and leave. Out of every three years you only get one good year out of them [emphasis added].
As told to Ms. Laskis specifically, the partner advised her that she had to demonstrate that she was more than "just a pretty face." Furthermore she was purportedly advised that she was "not helping herself coming to work looking well put together." This was despite the fact that she was recognized for doing consistently good work reflected in performance reviews.

Clearly, sometimes keeping one's head down and doing their work allows further discrimination and abuse to happen.

If all that Ms. Laskis claims is true, she, is not the troublemaker. The errant partner is and so is the firm for allowing it to occur (on a vicarious liability theory). Furthermore, in pursuing this case and hopefully being vindicated along the way if she can prove her case, she helps to challenge the hegemonies of deterrence that expect the discriminated to not only accept the wrongdoing but are made to feel like they have something to be ashamed of when speaking out.


James Hathaway, The Law of Refugee Status (Markham, ON: LexisNexis Canada, 1991) at 219 (speaking about the enforcement of international human rights law being dependent on publicity and moral probation. While the context in which Professor Hathaway speaks about it is different from what is addressed here, I think the concept nevertheless has resonance).

Michele Henry, "Woman Alleges Sexual Discrimination in Lawsuit Against Toronto-based Firm" The Toronto Star (15 February 2011), online:

Laskis v. Osler, Hoskin & Harcourt LLP, 11-Civ-0585 (S.D.N.Y. 2011).

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