Sexual harassment can cause big problems for your firm but it is an avoidable issue. Prevention of sexual harassment is important for several reasons: to avoid lawsuits and financial cost to your firm or yourself, it is illegal and unethical behavior which disrupts good workplace morale and threatens both your own personal and the firm’s reputation and to avoid discipline or termination. Another consideration is the media. The press loves to cover sexual harassment lawsuits – you don’t have to be famous, they will still bash the harassing company or firm. Therefore, awareness and prevention of sexual harassment are extremely important and should be taken very seriously.
Workplace Harassment Laws
Workplace harassment laws are based on harassment as a form of discrimination. Federally, a firm of 15+ employees is subject to Title VII of the Civil Rights Act of 1964 which prohibits discrimination in the workplace based on sex or gender. The Equal Employment Opportunity Commission (“EEOC”) administers and enforces Title VII. In California, a firm of 1+ employee(s) are subject to the Fair Employment and Housing Act (“FEHA”) which is administered and enforced by the Department of Fair Employment and Housing (“DFEH”). Both Federal law and most states that cover harassment prohibit retaliation as well as harassment.
Workplace harassment is defined as unwelcome conduct based on a protected category. It is not always easy to tell what is welcome or unwelcome conduct, it will be based it on what the person felt was welcomed at the time of the harassment. There are two main theories of harassment: (1) Quid Pro Quo; and (2) Hostile Work Environment. The Quid Pro Quo theory is characterized by the promise(s) of job benefits in exchange for sexual favors, however subtle, or the loss of benefits if a sexual advance is rejected. The Hostile Work Environment theory requires a protected category and is characterized by conduct that is so severe and pervasive that it interferes with the reasonable person’s ability to do his/her job or alters the conditions of employment.
There is a lot of unpredictability about what is harassment and it is decided very much on a case-to-case basis. For preventative purposes, it is difficult to know what is acceptable but you don’t want to have to find out from the judge or jury.
Who is liable for sexual harassment claims will be determined by who committed the harassment. Federally, if a supervisor is responsible for sexual harassment the firm is liable IF the harassment culminated in tangible employment actions. If not, there is an affirmative defense if the firm exercised reasonable care to prevent and promptly correct the harassment and the employee unreasonably failed to complain or otherwise avoid harm. In California, there is strict liability and no defense for the firm if a supervisor is liable. If a non-supervisor or third party (clients, co-workers, vendors, etc.) commits the harassment, there is a negligence standard applied. The firm is liable IF it was “on notice” and failed to take prompt effective action. “On notice” refers to any supervisor who knew or should have known of the harassment. Once a supervisor is put on notice, the firm is deemed to know as well. Prompt effective action requires the harassment be reported quickly by a supervisor, there was a timely, thorough and fair investigation and there will be disciplinary action where the policy has been violated. Case law gives employers a fair amount of discretion regarding discipline, but the action must be designed to deter and ensure the behavior does not happen again.
There are a number of remedies available for sexual harassment claims. A harassed employee can or go to the EEOC or DFEH who can sue on their behalf or take other legal actions against the firm, such as hiring a sexual harassment lawyer. The employee can directly sue the firm for back pay, reinstatement, compensatory damages including pain and suffering, punitive damages which has no limit in some states (like California), and oppression, fraud or malice. In California, the employee can sue the harassing individual instead of the firm.
Rules Governing Behavior in the Legal System regarding Harassment
As a lawyer, there are a set of model rules governing behavior in the practice of law. Violations of these rules may lead to disciplinary matters and possibly disbarment. For example, a named partner of a class-action firm in Chicago was accused of sexually harassing five women, including associate attorneys, allegedly exposing himself to several women at the firm. The partner is currently facing disciplinary actions by the Illinois State Bar ranging potentially from 30 months suspension to disbarment. State Bar Associations will not take sexual harassment claims lightly, and disbarment is always a possibility. Therefore you must follow these rules and guidelines to ensure you keep your license to practice.
Rule 8.4 of the Model Rules of Professional Conduct is about maintaining the integrity of the profession and what constitutes misconduct. The comment reads “A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon sex…” violates the rule.
Similarly, Rule 2-400 of the California Rules of Professional Conduct regarding prohibited discriminatory conduct in a law practice states “A firm (which includes sole practice) may not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of…sex… in determining conditions of employment or accepting or terminating representation of any client.”
There are some easy ways firms can prevent harassment and have guidelines for what to do when dealing with a sexual harassment incident. Unless you are a sole practitioner who has no employees and never deals with clients, every law firm should have an anti-harassment policy in place. Remember that third parties can give rise to harassment claims when drafting your policy. Additionally, consistent policy enforcement is key: you enforce against your highest paying client or your managing partner. No one is so valuable that they are worth the bad press, cost and time of litigation. You can consider sexual harassment training or continuing education as a law firm, possibly holding annual meetings to go over and / or edit your anti-harassment policy.
The key aspects of an anti-harassment policy are: (1) A statement prohibiting harassment at the firm on sexual or other prohibited grounds. The best way to do this is by prohibiting inappropriate conduct and making it a violation of policy regardless of whether the behavior is illegal; (2) A statement prohibiting retaliation; and (3) Specified consequences for violations of the policy. Your policy should include a process for filing a complaint. You should consider requiring supervisors to pass along complaints to more than one party, this way all complaints are seen by at least two people. It is also important to ensure your firm’s anti-harassment policy meets local and Federal legal requirements. For example, in California there is a requirement to provide contact information for the EEOC and the DFEH in the policy or have it posted in a communal area.
How To Earn CLE Credit on this Topic
For an in-depth review of this topic, Attorney Credits offers a course titled “Sexual Harassment: Awareness and Prevention for Lawyers.”
The course is available for CLE credit in the following states:Alaska (AK) | Arizona (AZ) | California (CA) | Connecticut (CT) | District of Columbia (DC) | Illinois (IL) | Maryland (MD) | Massachusetts (MA) | Michigan (MI) | New Jersey (NJ) | New York (NY) | North Dakota (ND) | Pennsylvania (PA) | South Dakota (SD)