May 01, 2018 Substantive Law

Courts and the Profession Policing Sexual Harassment Internally

By Lauren M. Gregory

Reprinted with permission from Litigation News, Spring 2018 (43:3), at 4-5. ©2018 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Sexual harassment is being reported everywhere—including within the legal industry. Ninth Circuit Judge Alex Kozinski’s resignation in the wake of sexual harassment claims from his former clerks led to a revision of the federal Law Clerk Handbook to clarify that confidentiality rules in chambers do not prevent reporting of “misconduct, including sexual or other forms of harassment, by their judge or any person.” Meanwhile, in his2017 Year-End Report on the Federal JudiciaryU.S. Supreme Court Chief Justice John Roberts called for an evaluation of how the judicial branch handles sexual harassment allegations.

As more members of the bar join the #MeToo movement, a spotlight has been placed on sexual harassment in the legal community. Leaders of the ABA Section of Litigation say they are aware the problem needs to be addressed and are committed to identifying solutions.

 

Harassment among Lawyers

The law firm environment can perpetuate sexist behavior, though it does not always rise to the level of harassment, observes Hailyn J. Chen, Los Angeles, CA, cochair of the Section of Litigation’s Woman Advocate Committee.

Chen believes that “the very egregious behavior is probably pretty uncommon in law firms.” On the other hand, Chen has witnessed “gender-based bullying on a more subtle level,” including bullying of younger female litigators in depositions.

Phillip A. Cole, Minneapolis, MN, who serves on the Attorneys’ Liability Subcommittee of the Section’s Professional Liability Litigation Committee, says he does not recall witnessing any inappropriate behavior during his 35-year career. However, he adds, “I am sure that there are instances where more senior lawyers harass younger female lawyers.”

Emily J. Kirk, O’Fallon, IL, cochair of the Section’s Solo & Small Firm Committee, agrees. “A law firm is the perfect place for an older, well-established partner who brings in a lot of business to remain protected,” she says.

The stringent ethical standards to which lawyers are held may help combat the problem, notes Matthew P. Clune, Kansas City, MO, chair of the Roundtable Subcommittee of the Section’s Employment and Labor Relations Law Committee. “Lawyers know the law, what’s right and what’s wrong, and should be more controlled than non-lawyers,” Clune opines.

Nonetheless, Clune concludes, “law firms are not immune to the problem.”

 

Best Practices

Most companies, firms included, “already have strongly worded ‘zero tolerance’ policies in place,” says Kelly M. Matayoshi, San Francisco, CA, cochair of the Section’s Employment and Labor Relations Law Committee. These policies are generally revisited each time the company updates its employee handbook, she says.

Setting out a clear policy and communicating that policy is an important first step but does not solve the problem, Matayoshi explains. “The policies themselves are already pretty solid,” she says. “But there is still a stigma and it is hard for someone to come forward and talk to the supervisor to report.”

Indeed, the U.S. Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace has reported that three out of four individuals who have experienced harassment never brought the incident to the attention of their supervisor.

Many companies have anonymous hotlines to encourage reporting, according to Matayoshi, but such systems do have a drawback: Without knowing who the employee is, it is difficult for the company to conduct an investigation. Therefore, to get closer to the root of the problem, Matayoshi recommends a focus on training for both supervisors and their subordinates.

It is important to design the training to cover what some of the least tolerant individuals might find offensive, Matayoshi counsels. “Different people have different ideas of what is and isn’t harassment,” she explains.

Aside from robust policies and training programs, it is important to take action in response to substantiated harassment claims—perhaps even termination where appropriate, according to Clune. “If employees see people disappearing [after an incident of harassment], that’s going to be a strong enforcement tool,” he suggests.

 

Contemplating Confidentiality

It is equally important for firms to consider whether it is appropriate to cloak a harassment proceeding in confidentiality, Matayoshi advises. Many harassment victims are unable to blow the whistle publicly due either to confidential arbitration proceedings required under their employment agreement or to an employer’s demand for a confidential settlement agreement, she explains.

Victims’ rights advocates have been vocal about abolishing confidentiality provisions in harassment cases, and lawmakers are listening. In December 2017, U.S. Senator Kristin Gillibrand introduced the Ending Forced Arbitration of Sexual Harassment Act of 2017, to render arbitration agreements unenforceable in sexual harassment cases. Several states have taken action as well, including California, where in January 2018, Senator Connie N. Leyvaintroduced SB-820, which seeks to amend California’s Civil Procedure Act to prohibit confidentiality provisions in settlement agreements related to sexual harassment claims unless the victim elects to include them.

“There are pros and cons,” Matayoshi says. “Keeping a settlement agreement confidential may help to perpetuate the problem, because it keeps people who engage in that conduct protected and anonymous,” she says. “On the other hand, we do see circumstances where the victim wants to stay quiet to avoid harm to her reputation.”

Importantly, a confidentiality clause also provides leverage for settlement in order to allow the victim to reach a resolution more quickly and move on with his or her life, Chen asserts. “I think it’s a little more nuanced than how the media makes it out to be,” she concludes.

 

Strengthening Sanctions

Cole has defended lawyers accused of ethical breaches for decades and says he has never handled a case involving a sexual harassment claim. However, that may change.

In August 2016, the ABA amended Model Rule of Professional Conduct 8.4(g)to address harassment, including sexual harassment. Under the revised rule, it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Such conduct, the rule comments state, “undermine[s] confidence in the legal profession and the legal system.”

This kind of misconduct may manifest itself between lawyers or in the lawyer-client relationship, Cole observes. “The main issue in the attorney-client setting is the inequality of the relationship, where often the woman will be dependent on the lawyer’s success on her behalf,” he says.

Meanwhile, one court has demonstrated that it will not tolerate any type of discriminatory behavior. In January 2016, then U.S. Magistrate Judge Paul S. Grewal of the U.S. District Court for the Northern District of Californiasanctioned a male attorney for admonishing opposing counsel during a deposition: “[D]on’t raise your voice at me. It’s not becoming of a woman. . . .” Judge Grewal ordered the attorney to donate $250 to the Women Lawyers Association of Los Angeles.

Chen views these developments as a step forward. “If judges start calling attorneys out more like that, coupled with a disciplinary rule that could affect someone’s bar license, that’s a step in the right direction,” she concludes.

 

Are We Overcorrecting?

However, sometimes efforts to curb harassment have unintended consequences that can victimize in a different manner, Kirk notes. “In my experience, I have noticed that some male partners favor taking a male associate to travel to an out-of-state deposition, client visit, or pitch—or simply go alone—in an effort to avoid a problem,” she says. “I don’t think it’s intentional, but losing out on those opportunities can stifle women trying to come up in the field. Does this put up yet another barrier for women?”

 

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Lauren M. Gregory is an associate editor for Litigation News.