February 06, 2018

ABA adopts new policy to combat sexual harassment in the legal workplace

The American Bar Association’s policy-making body is urging employers in the legal profession to prohibit, prevent and promptly redress sexual harassment and retaliation claims, including adopting measures to ensure that the heads of law firms be informed of financial settlements to resolve claims.

The new policy, approved by the House of Delegates, was embraced Monday, Feb. 5, the final day of the ABA Midyear Meeting in Vancouver, B.C. Altogether, the 601-member House approved nearly three dozen resolutions that included recommendations to expand access to the courts, limit use of mandatory sentences, encourage more attention to lawyer health and well-being and improve civil rights protections for Americans, particularly on the basis of sexual orientation and gender identity.

The ABA House of Delegates convenes at the Midyear Meeting in Vancouver

The House meeting was its first since the #MeToo movement gained steam in October 2017 after revelations of sexual harassment in the workplace began to rock the entertainment, media and political establishments. Resolution 302, expanding ABA policy dating to 1992, sets forth new components for enforcing policies and procedures prohibiting harassment and retaliation in the workplace based on gender, gender identity and sexual orientation. It was praised by advocates as long overdue.

“There can hardly be a resolution more timely than 302,” said Stephanie Scharf, chair of the ABA Commission on Women in the Profession, the resolution’s chief sponsor.

Before final approval, the resolution was strengthened through an amendment from Mark Schickman, an employment lawyer in San Francisco, who said his group of changes was to take “good product and make it a much better product.”

Gene Vance, a Kentucky delegate, observed that “this resolution is not primarily about women. It is primarily about men. Men have an obligation to end this now. … Men must say, ‘time’s up’.”

The final voice vote was unanimous.

While the bulk of the House resolutions passed without opposition, two were approved by split votes. Resolution 103A grants accreditation to the privacy law program of the International Association of Privacy Professionals for a five-year term as a designated specialty certification program. ABA Business Law Section representatives opposed the measure, cautioning that the concept of privacy law is too broad for a specialization. Separately, Resolution 101A urges federal courts, Congress and the U.S. Patent and Trademark Office to adopt rules to allow “an evidentiary privilege” – or confidentiality with clients – to patent agents, who might not be licensed lawyers.

In other action, the House adopted:

  • Resolution 114, which expands on ABA policy first adopted in 2006. The measure urges that low-income persons in all proceedings that may result in a loss of liberty — regardless of whether the proceedings are criminal or civil or initiated or prosecuted by a government entity — be provided court-appointed counsel. The U.S. Supreme Court in Gideon v. Wainwright in 1963 provided the right to counsel in criminal cases. The resolution supports a concept known as “civil Gideon” and expands current ABA policy to reach “quasi-criminal” matters, such as contempt for failure to make child support.

  • Resolution 111, which urges jurisdictions that impose capital punishment to prohibit execution of any individual who was 21 years old or younger at the time of the capital offense. In 1983, the ABA became one of the first organizations to call for an end to using the death penalty on individuals under the age of 18, and in 1997 the ABA called for a suspension of executions until states and the federal government improved several aspects of their administration of capital punishment. But the ABA has taken no position on the death penalty per se.

  • Resolution 105, which calls for the various stakeholders in the legal profession to consider recommendations set out in The Path to Lawyer Well-Being: Practical Recommendations for Positive Change. The report, designed to shift the culture of the legal profession to emphasize more well-being of lawyers and law students, follows several years of renewed ABA attention on mental health and substance-use disorders in the legal profession.
  • Resolution 10A, which encourages law firms to develop initiatives to provide women lawyers with more opportunities to gain trial and courtroom experience. Sponsored by the New York State Bar Association, the resolution reflects growing concern in the legal profession that women are not gaining enough courtroom experience, contributing to a higher percentage of them leaving the profession.

  • Two resolutions aimed at assisting homeless youth, which is estimated to total some 1.5 million in the U.S. and nearing 100 million worldwide. Resolution 113 supports the development of systems to address legal needs of youth and young adults experiencing homelessness. Resolution 301 endorses General Comment No. 21 on Children in Street Situations issued in June 2017 by the U.N. Committee on the Rights of the Child.

  • Resolution 108D, urges federal, state and others courts to extend Batson v. Kentucky, a U.S. Supreme Court decision in 1986 that barred preemptory challenges of jurors based on race, to cover similar challenges on the basis of sexual orientation or gender identity/expression.

Additionally, several measures approved by the House supported either reversal or limitations on policy initiatives or decisions by the U.S. Department of Justice (DOJ) or other agencies. These measures were:

  • Resolution 108E asks the Executive Branch to rescind its decision – now part of the overall immigration discussion in Washington ­– to end the Deferred Action for Childhood Arrivals (DACA) program, which affects several hundred thousand “Dreamers.” The ABA measure only focuses on the “Dreamers,” immigrants who were brought into this country illegally by their parents when they were children.

  • Resolution 108C urges DOJ to restore prosecutorial discretion in choosing the charges pursued against a defendant and to reserve mandatory minimum sentencing to only the most serious drug traffickers, in addition to prohibiting its use to secure plea agreements.

  • Resolution 116A supports an interpretation of a provision of Title VII of the Civil Rights Act of 1964 that prohibits sex discrimination in employment to include discrimination based on sexual orientation and gender identity. In October 2017, DOJ issued an interpretation that Title VII “does not prohibit discrimination based upon gender identity per se” after earlier filing an amicus brief in a case arguing similarly.

A complete list of resolutions can be found here.