In recent years our nation experienced an unprecedented rash of harassment stories in the news and in the courts, culminating in an outpouring of long-withheld complaints and mainstreaming the #MeToo movement. Many employers were left scrambling to determine how to address the fallout, as well as how to protect themselves from similar claims.
An employer’s legal—and, perhaps, moral—obligation is to prevent, address and remedy harassment. When the employer is a law firm, management and supervising attorneys are held to a higher standard with regard to violations of employment law since attorneys are expected to know and follow the law, and failing to comply with clear legal obligations can result in substantial liability. Managing legal risk, as well as avoiding the workplace repercussions of a harassment complaint, depends upon a law firm’s efforts to follow a number of critical steps described below.
Preventing the Harassment
The law firm’s most critical obligation is to prevent harassment from occurring in the first place. In addition to developing solid policies on avoiding and reporting harassment, supervising attorneys and administrative managers can take several steps to promote a workplace free of harassment.
Set a clear example.
Law firm culture is always top-down. It is incumbent upon management to set the example for acceptable workplace conduct. When supervisors mistreat or disparage others, employees do as well. When supervisors take law firm policies as optional suggestions instead of workplace mandates, employees do as well. Developing and maintaining a firm where boundaries are respected, rules are followed and conflicts are resolved will limit legal risk and ensure that all law firm employees can have the opportunity to enjoy a respectful and fulfilling environment.
Some states have implemented mandatory supervisory harassment training. In 2019 California requires that companies with five or more employees provide two hours of supervisory training and one hour of staff training every two years. Other states are following suit, recognizing that training can be an effective deterrent to harassment issues. Even where training is not mandatory, a law firm that provides such training is improving workplace culture as well as arming itself with a substantial defense to potential claims.
There is a common misconception among management that it is best not to mention the word “harassment” to employees, to avoid “putting ideas in their heads.” To the contrary, it’s unlikely that an employee will raise a complaint of harassment solely because the supervisor raised the issue. When a supervisor asks, “Have you had any issues with harassment in the workplace?” the sweeping majority of employees will quickly respond in the negative. If the employee does acknowledge a complaint of harassment, this should be considered a blessing: Finding out about a workplace problem before an employee has resigned, retained legal counsel or pursued formal legal action gives the firm an opportunity to investigate and remedy that problem before it is faced with an administrative claim or civil lawsuit.
Addressing the Complaint
The law firm must address every complaint of harassment, no matter how small. Some complaints may seem frivolous or irrelevant in the rush of business. When an employee raises a complaint, it is important to respond in a manner that respects the employee’s right to complain and demonstrates that the firm takes the complaint seriously. To address a complaint, the supervisor should follow several key steps, noted below.
It’s critical that supervisors listen carefully to their subordinates. Unfortunately, most supervisors believe that they need not address any employee issue unless the employee references key buzzwords, such as “harassment,” “complaint” or “lawyer.” This is particularly the case in law firms, where supervisors often assume that lower-level personnel would be comfortable raising legal violations. In fact, a savvy supervisor should be listening for any sign of distress among employees. When workplace conditions or otherwise friendly relationships seem to have changed, or an employee expresses feelings of anger, frustration, disgust, concern or other distress, taking the time to follow up can go a long way toward discovering brewing issues before they turn into full-blown investigations.
It has always been a good idea for supervisors to report any employee complaint, particularly of harassment, to human resources or upper management to ensure proper handling of that complaint. In California, for example, it’s no longer merely a good idea to report a complaint: It’s mandatory to do so. To ensure that complaints are properly and fully addressed, supervisors must report any harassment complaint, no matter how small and regardless of whether the supervisor is capable of handling it alone. Simply emailing human resources or the firm’s management committee to note that a complaint came up and was investigated, addressed and resolved serves as a “report” of the complaint.
Every complaint of harassment must be investigated, no matter how small it might be. Investigation doesn’t necessarily mean that the employer reserved a conference room, hired an outside investigator and interviewed multiple witnesses, although that might be necessary in certain cases. In many situations, investigation may mean simply that a managing partner or human resources person talked to the complainant, talked to the accused, developed a resolution to the issue and documented that outcome.
Remedying the Harassment
Once the law firm has investigated the harassment complaint, the final step is to remedy any harassment that may have occurred—and ensure that it won’t happen again. There are several key steps to this resolution process.
When a complaint of harassment arises, the supervisor’s reaction is often to take unilateral and immediate steps to solve the issue. A better approach is to talk to the complainant about options and work together to determine the best remedy. The supervisor might offer to move the employee, hold a meeting between the two employees, have a discussion with the other employee or various other options. It’s also advisable to ask the complainant for input on acceptable solutions. By engaging in an interactive discussion, the employee feels heard and respected, and the situation is more easily diffused and resolved. Once an acceptable outcome is achieved, the law firm must inform the complainant and the accused of the general outcome of the investigation and the solution (without breaching employee privacy), to close the matter.
Disciplining the accused.
It’s critical to issue disciplinary action in any situation where harassing conduct has taken place, whether or not the harasser intended to harm the victim or even knew that the victim was unhappy. If asked, “What did you do to address the situation?” after a harassment complaint, the law firm’s response should not be, “I assumed it wouldn’t happen again, so I let it go.” Discipline may include a written warning, suspension or termination. In a more simple matter, and even if the accused denies all allegations, it isn’t necessary to act as judge or jury and come to a decision. It may be sufficient to simply send an email reminding the accused that harassing conduct is prohibited by law and law firm policy—and that it shouldn’t occur in the future.
This simple but critical final recommendation likely would resolve more than half of the harassment cases filed each year. In a typical harassment complaint, the employer addresses the matter and takes what it believes to be appropriate action to remedy the harassment. The employer is then shocked when the complainant files a formal civil complaint at some later date, claiming the harassment has continued. To employees, the fact that a problem is continuing means that “management isn’t going to help me.” To management, the lack of further complaints means “the problem must be solved.”
A simple way to avoid this disastrous miscommunication is for the law firm to follow up after a harassment situation is (presumably) resolved. Supervisors should make a note in their calendars to check in after a few weeks and again in a few months. If the employee confirms that all is well, document that response for the file. If the employee indicates that harassment is continuing, address the matter once again, before it turns into a legal dispute. If nothing else, the effort to follow up increases employee morale by demonstrating that the firm cares about employee complaints and will take prompt action to address any firm issues.
Complaints of harassment may be raised by employees not only against law firm supervisors and staff but also against law firm clients. The firm is required to protect its employees from third-party harassment, including from clients and opposing counsel. This can be challenging when the harasser is the one of the firm’s best clients. Nevertheless, client billings may pale when compared with the attorney fees and damages incurred and awarded in a harassment claim. In today’s environment unresolved complaints become public lawsuits, and related media stories can quickly destroy a law firm’s reputation with prospective clients.
It’s also critical to avoid any retaliation against an employee who files a complaint of harassment. Public shaming is rampant, and victims often are discouraged from speaking up. Supervisors who believe they have been wrongfully accused of harassment (and particularly supervising attorneys, who are quick to look for legal remedies to perceived slights) often threaten to file defamation or harassment claims against complaining subordinates. Going on the attack against a complainant is risky. Not only does a plaintiff have a legal right and, ultimately, a litigation privilege to raise good faith complaints of unlawful conduct, but also it is extremely challenging to prove that a complainant had no legitimate basis for asserting what he or she believed to be inappropriate, offensive or harassing conduct. On the other hand, supervisors who choose to attack the victim by making harsh accusations against or derogatory comments about the complainant may find themselves defending a defamation action as well as a harassment complaint.
Attorneys who make derogatory statements against a complainant in the course of defending a client from a harassment claim also may find themselves accused of defamation; the litigation privilege does not extend to “victim bashing” to gain an advantage in an investigation or civil action. Despite the media attention on high-profile cases, attempting to sway public opinion in your client’s favor may be seen as unprofessional and could backfire. It’s best to refrain from commenting upon active investigations or litigation and let the process run its course.
Preventing, addressing and remedying harassment complaints in the workplace require diligence, patience and vigilance. Law firm management and supervising attorneys often complain that they “don’t have time” to handle these issues along with their other responsibilities. Remind supervisors that protecting employees from harassment and addressing employee complaints are fundamental parts of their responsibilities. Invariably, spending 15 minutes addressing a relatively minor workplace conflict or misunderstanding can avoid having to spend 15 months in litigation, with the resulting loss in productivity and substantial attorney fees and costs incurred in defending the matter. By developing a respectful workplace, promptly addressing any issues that arise and taking all complaints seriously until they are fully resolved, law firms can substantially reduce, if not eliminate, the risk of becoming a statistic or a casualty in the growing harassment crisis.