Volume 20, Number 1
Eliminating Sexual Harassment in Your Law Office
By Sheila Thomas and Shivani Sutaria
For all of us in the legal profession, sexual harassment hit home with the Weeks v. Baker & McKenzie lawsuit.1 Many were stunned by the size of the verdict, the egregious facts of the case against the world's largest law firm, and Baker & McKenzie's failure to protect female employees from the unlawful and unprofessional conduct of a senior partner.
According to court testimony, a high-powered senior partner berated legal secretary Rena Weeks, dropped candies in the pocket of her blouse, groped her breast and buttocks, and made sexual remarks-acts he committed with impunity from the firm. When Weeks sued for sexual harassment, it became apparent that the partner's conduct was not an isolated incident but a pattern of behavior; six other female employees-all of them former coworkers of the partner-came forward to testify that he had also touched them, made inappropriate remarks, and pressured them for sex. Most of the women had told management about the sexual harassment, but the firm responded by either ignoring the complaints or transferring the complainants. One woman was even fired. Furthermore, the firm concealed the partner's conduct by keeping the written complaints in the women's personnel files instead of in his.
Employers in the legal profession are responsible for fostering a professional environment free of sexual harassment. Female employees have the right to be free of sexual harassment, a problem that can adversely affect their health, economic status, and personal and professional relationships. The presence of a sexually hostile work environment impacts the morale of victims as well as the morale of coworkers who observe the conduct; it also impacts the retention of female employees whom firms have spent time and money to train. Addressing and preventing sexual harassment is in the best professional, social, and economic interests of employees and employers.
The potential for sexual harassment claims against law firms is substantial. The majority of sexual harassment incidents, particularly egregious incidents, occur between a male supervisor and his subordinate-since the harassment is often an extension of the authority and power supervisors already have. The influx into firms of female associates who are often assigned to older male associates and partners under conditions of long hours, close working relationships, and travel requirements makes the legal profession especially susceptible to sexual harassment problems. The legal profession has a responsibility to ensure women are not injured or hindered because of the illegal behavior of harassers.
The federal law prohibiting sexual harassment is Title VII of the 1964 Civil Rights Act, the law that bars employment discrimination based on sex. Title VII applies to employers with 15 or more full-time employees. (Partners in a law firm that is a true partnership are not counted in determining whether a firm has 15 employees, but associates are counted. If a firm is a professional corporation instead of a partnership, all lawyers and staff are considered employees for purposes of meeting the Title VII threshold.) In addition, state discrimination laws, such as the California Fair Employment and Housing Act, protect employees working for employers with one or more employees. It's important to determine whether state laws in your practice jurisdiction provide similar protections for employees in small firms.
Under Title VII, the legal definition of sexual harassment is "unwelcome verbal, visual, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment." Sexual harassment has traditionally been categorized into two types: quid pro quo and hostile environment.
l Quid pro quo occurs when a supervisor offers benefits, or threatens to change working conditions, based on a subordinate's response to his demands for sexual favors: "I'll give you a raise if you go out with me"; "I'll demote you if you don't have sex with me."
l Hostile environment occurs when physical, verbal, or visual conduct is severe or pervasive enough to unreasonably interfere with an employee's work performance or to create an intimidating, hostile, or offensive work environment. It does not require a loss or threat of loss of your job or the promise of benefits. The perpetrator can be a supervisor, an agent of the employer, a supervisor in another area, a coworker, or a non-employee such as a vendor. Sexual remarks, pornographic pictures displayed at the workplace, and touching and grabbing constitute a hostile work environment. A single incident of inappropriate behavior, such as a single unwanted request for a date or a single sexually suggestive comment, while offensive, is not "pervasive" or "severe" enough to be defined as sexual harassment. But a number of relatively minor incidents might amount to sexual harassment if the incidents interfere with the employee's work environment. A single incident of rape or attempted rape would likely constitute sexual harassment (as well as violate criminal laws).
Title VII also prohibits retaliation against employees who complain about sexual harassment or who participate in an investigation of sexual harassment. Quite often employers take adverse action against employees who complain, thereby making a difficult situation worse and greatly increasing chances that the matter will result in legal action. Examples of retaliation include making the complainant take an unpaid leave of absence although the harasser continues to work or reassigning a participating witness to a less desirable position in the same or different department.
Under Title VII, employers are liable for preventing and stopping sexual harassment of their employees. In 1998 the U.S. Supreme Court clarified employer responsibilities in Ellerth v. Burlington Industries2 and Faragher v. City of Boca Raton,3 ruling that an employer is subject to liability in sexual harassment cases where there is a hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. In both Faragher and Ellerth, plaintiffs alleged that their supervisors subjected them to repeated, unwelcome sexual comments and touching but they never suffered adverse employment action such as firing, demotion, or undesirable reassign- ment. Neither woman reported the problem to employers-common behavior for victims who may be ashamed and/or fear retaliation.
In Faragher the Court found that the employer was liable because it "entirely failed to disseminate its policy against sexual harassment" and the "policy did not include any assurance the harassing supervisor could be bypassed in registering complaints."4 In Ellerth the Court reaffirmed its decision in Faragher by ruling that employers still can be held liable5 even if there is no tangible adverse employment action and the employer is unaware of the harassment.
Employers can assert an affirmative defense, however, in cases in which there is no tangible adverse employment action and the harasser is not a supervisor. The employer must prove both that (a) it exercised reasonable care to prevent and correct any sexually harassing behavior and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Although there are no specific actions an employer must take to satisfy the first requirement, there are several preventive policies and practices employers can easily implement. These policies and practices are most effective, of course, if they are put in place to prevent sexual harassment in the first place, not simply to avoid legal liability in a possible suit.
Adopting a Policy
Employers should implement a program that includes both a written antiharassment document and periodic training programs for all employees. Implementing these two standard preventive measures is the first step to creating an environment where employees feel heard and that their concerns will be fairly, effectively, and promptly addressed.
Documents. A carefully drafted policy that contains adequate protections for employees can send the powerful message that the employer cares about the issue and will fairly and promptly address any sexual harassment complaints. The policy should clearly state that sexual harassment and retaliation will not be tolerated and that all complaints will be taken seriously and investigated. Additionally, it should detail the legal definition of sexual harassment, employees' rights under the law, procedures for filing an internal complaint, the employers' investigative process, and disciplinary actions that will be taken against an employee found to have engaged in sexual harassment. All employees should receive the written sexual harassment policy and pledge compliance by signing a written agreement after reading the policy.
Training. Substantive sexual harassment training should be held for employees at least once a year, and employees and supervisors should attend separate sessions. Employee trainings should focus on providing employees with information about what constitutes sexual harassment, their rights under the law, and the company's complaint process. Supervisor trainings should review the sexual harassment policy and make sure that supervisors know what types of behavior are illegal. Small firms may find it simpler to hold less formal training sessions, for example, designating a staff meeting to go over policies and sexual harassment do's and don'ts.
Employer response. The way employers deal with complaints also says a lot to employees about their commitment to preventing and/or stopping sexual harassment. Employers should develop and adhere to a prompt, thorough, and impartial predefined investigation method (one that is also detailed in the written material provided to employees).
It's essential that those designated to handle and/or investigate sexual harassment claims be properly trained, respectful, and viewed as fair and trustworthy by employees in the firm. Designate more than one person to take complaints, including someone who is out of the chain of command, because the alleged harasser statistically is more likely to be a supervisor. An employee with a harassment complaint should not be required to complain to the harasser before discussing the matter with the designee, and the alleged harasser should not have any direct or indirect control over the investigation. Although this may seem self-evident, in a surprising number of instances, individuals who engaged in sexual harassment were selected to be the employer's representative for complaints of sexual harass- ment-sending the message that sexual harassment complaints are not taken seriously by the employer and will not be fairly resolved.
The investigation must be conducted in a confidential manner, and this should be emphasized to all parties, witnesses, etc. Interim measures taken during the investigation (scheduling changes to avoid contact between the parties or placing the alleged harasser on leave pending the conclusion of the investigation) should not burden the employee who made the complaint. Employers often think a reasonable solution is to transfer the complainant to another location or position, but this can be perceived as the complainant's being punished for speaking up. Furthermore, if the transfer is less desirable than the complainant's original assignment, it could be evidence of retaliation in a lawsuit.
Because every firm varies by size and culture, employers should take the time and effort necessary to determine which practices and policies are most effective. It might be advisable to consult with a specialist in the devel- opment and implementation of sexual harassment policies and preventive methods to determine what would work best in your firm. The goal for everyone is a professional work environment in which every employee feels respected and positive about the firm's commitment to a harassment-free
1. 63 Cal. App. 4th 1128 (1998), rehearing denied, 1998 Cal. App. LEXIS 490 (June 2, 1998), review denied, 1998 Cal. LEXIS 5722 (Aug. 26, 1998).
2. 524 U.S. 742 (1998).
3. 524 U.S. 775 (1998).
4. Id. at 808.
5. Id. at 765.