Sexual harassment: an ounce of prevention.

In the May 1993 issue of TRIAL, ATLA's then president, Roxanne Barton Conlin, described her own confrontation with sexual harassment in the days before it had a name, and the cost to her in personal anguish and having to quit a job she loved.(1) Anyone who knows her also knows that the boss whose sexual demands forced her out of that workplace lost an outstanding employee. Unfortunately, there was nothing unique about this story when it happened, and there is nothing unique about it today.

Sexual harassment is as much a problem in the legal profession as in any other. We ignore it at our peril - not only because of the potential legal liability, but because even when the harassment is not so sustained or severe as to give rise to liability, it hurts morale and productivity and causes good people to quit. This article discusses the incidence and sources of sexual harassment affecting law firms, what constitutes an effective sexual harassment prevention program, and resources that can help law firms create and implement these programs.

Incidence of Harassment

Our information about the incidence of sexual harassment in the legal profession comes from many sources: cases, surveys, consultants, news reports, and individual women who call the ABA Commission on Women in the Profession seeking help. Among recent cases involving law firms are the following:

* Paul, Hastings, Janofsky & Walker entered into a consent decree with the Equal Employment Opportunity Commission (EEOC) to strengthen its sexual harassment policy and improve its training. A complaint had alleged that a male partner in the firm's New York office subjected an associate, a paralegal, and a secretary - all female - to a hostile work environment when he made repeated unwelcome comments about his sexual experience and desire."(2)

* An Oakland, California, jury awarded $480,000 to a file clerk at Eskanos & Adler because the firm failed to investigate when she accused her supervisor of raping and harassing her.(3)

* In August 1993, a Philadelphia jury found that a male partner at Reed, Smith, Shaw & McClay subjected a female associate to a hostile work environment and defamed her when she complained about the treatment.(4)

* Two sexual harassment suits are pending against Baker & McKenzie, alleging that a male partner in its Palo Alto office subjected a female associate and three former secretaries to unwanted sexual touching and conversation and retaliated when they complained.(5)

That these cases are not aberrational is demonstrated by the numerous studies on sexual harassment in the legal profession, two of which focused specifically on law firms. In 1989, the National Law Journal and WESTLAW conducted a survey of women associates and partners at large law firms in nine cities. Of the more than 900 women who responded, 60 percent said they had experienced some form of sexual harassment in the workplace. This included unwanted sexual teasing, jokes, remarks, or questions; unwanted sexual looks or gestures; unwanted deliberate touching, leaning over, cornering, or pinching; and pressure for sex. Thirteen of these women reported rape or attempted rape.(6)

In 1993, Prentice Hall Law & Business published a survey of women litigators from firms of all sizes across the country.(7) Of the more than 900 respondents, 55 percent reported experiencing sexual harassment within the last five years. Partners were slightly less likely to be harassed than associates, and those who worked in large firms were slightly less likely to be harassed than those in medium and small ones.

The study also looked at how serious a problem the respondents perceived sexual harassment to be. Between 32 and 44 percent of small-firm partners and all associates perceive sexual harassment as "a large/pervasive problem."

The study found there were many sources of harassment: clients, colleagues, judges, opposing counsel, and courtroom personnel. Law firms must be concerned about all these offenders, not just their own colleagues, because of the growth in third-party harassment litigation (discussed below).

Effective Prevention

An effective sexual harassment prevention program includes the following components:

* A comprehensive written policy.

* Repeated communication of that policy to everyone in the firm.

* Initial and refresher prevention training all partners, associates, paralegals, and support staff.

* Careful selection and training of those designated to received and investigate complaints.

* Investigations conducted with sensitivity and respect for confidentiality, for both parties.

* Emphasis on prevention.

* Commitment from management. There arc many resources to assist your firm in developing all aspects of an effectives prevention program. Information about how to obtain the resources described in the following text appears in the sidebar on page 20.

Developing a Written Policy

A comprehensive policy includes a statement of the firm's commitment to a harassment-free workplace, an explicit description of the kinds of behavior that are prohibited, and acknowledgement that sexual harassment can be perpetrated in same-sex situations and by women as well as by men. The policy should include a complaint procedure, a promise of no retaliation for complaining, and an investigation procedure that promises to preserve as much confidentiality as possible or both parties. The policy should also contain a full list of possible sanctions ranging from a reprimand to termination if sexual harassment is found a statement that malicious false complaints will also be punished, and a discussion of how the firm will deal with third-party, harassers.

It is important to provide detail about unwelcome behaviors that may be considered sexual harassment, because there is enormous confusion on this point. The definition provided by the EEOC is as follows:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly, a term or condition of an individual's employment, (2) submission to or rejection of such conduct by, an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably, interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.(8)

But this is inadequate for practical purposes. During the Clarence Thomas confirmation hearings, many men were stunned to learn that words alone do count.

Your firm's complaint procedure must include multiple points of entry; that is, there must be several people of both sexes and different ages designated to receive complaints. That way, the complainant can report to a person with whom she or he will feel comfortable in making this very personal disclosure.

Complainants cannot be limited to reporting to their immediate supervisors. In one sexual harassment case the U.S. Supreme Court has heard, Meritor Savings Bank v. Vinson,(9) the bank's complaint procedure was structured in this limiting way,. The harasser was the plaintiff's immediate supervisor, leaving her no avenue of complait. The Court held that a policy of this kind will not protect an employer from liability.

If your firm is not large enough to permit multiple points of entry, in house, consider retaining an outsider to serve as the firm's ombudsperson. This could be someone with a human resources or counseling background.

Among the resources that can assist in drafting a sexual harassment policy is Lawyers and Balanced Lives: A Guide to Drafting and Implementing Workplace Policies for Lawyers, a publication of the ABA Commission on Women in the Profession. The guide addresses parental leave, alternative work schedules, and sexual harassment. The chapter on the latter subject discusses the nature and consequences of sexual harassment in the legal workplace, the essential elements of a sexual harassment policy, and how to implement it effectively. It also provides a sample policy.

Several state and local bar associations, including California Women Lawyers, the New York State Bar Association, and the Philadelphia Bar Association, have also published guidelines and model policies.

A resource for law firms to use in educating particular about the need for a written policy, and training is a video released by the American Law Institute-American Bar Association Committee on Continuing Professional Education entitled "Law Firm Policies on Sexual Harassment: Development and lmplementation." It includes vignettes and a roundtable discussion among the legal director of the NOW Legal Defense and Education Fund, a defense attorney, a sexual harassment training consultant, and the author of this article.

Training Programs

A written policy, alone is not enough. Everyone from the chair of the management committee down should participate in initial and refresher interactive training programs. These programs should explain what sexual harassment is, how to use the firm's complaint policy, how investigation will be conducted, possible sanctions, how the firm will treat incident of third-party, harassment, and many, other matters that cannot be communicated in the written policy.

Training is necessary to deal with the fact that these are confusing times. Just how confusing is poignantly illustrated by the story of the senior partner who was accustomed to beginning each day with a surmise about his colleagues' sexual activity of the night before, based on whether or not they were smiling. As women began to join the firm, he greeted them in the same way. When word got back to him that the women found this offensive, he was perplexed. "But they told me to treat them equally," he said, "and I've always talked to the men this way."

Training should address men's questions about how to express social interest in a woman without being accused of sexual harassment. It should also deal frankly with the possibility of men's engaging in sexual discrimination - for example, not giving women important case assignments that involve traveling with men - in order to avoid the risk of such accusations.

Training is also needed to disabuse men and women of the widely held but mistaken belief that sexual harassment is only about sexual attraction and that women cause sexual harassment by their clothing or behavior. Sometimes sexual harassment occurs when an admirer does not know when to accept "no" as the final answer to his requests for a date, or a colleague does not realize that the magazine centerfold he displays without a thought is offensive to others.

But more often, as the title of a New York Times article summarizing the research about sexual harassment puts it, "It's About Power, Not Lust."(10) Misunderstanding this point leads to victim blaming and the erroneous assumption that only young, attractive women are harassed. In fact, women of every are and appearance are subjected to this kind of intimidation.(11)

Research repeatedly documents that men and women have very different attitudes about the welcomeness of sexually oriented conversation, jokes, pictures, and behavior in the workplace, and these attitudes need to be also in training programs. Trainings are also the place to communicate how extremely damaging sexual harassment is to the victim, even when it is strictly, verbal. The American Psychiatric Association classifies sexual harassment as a "severe" stressor because of the harms it causes.

Training programs should address the ways differences in men's and women's communication styles result in sexual harassment. Research in this area shows that men are inclined to sexualize women's expressions of friendliness and that women may express "Bug off!" in a friendly, indirect, or even nonverbal manner that men misread. Both sexes need to alter their communication styles to minimize misinterpretation.

A resource to assist your firm in selecting trainer is the NOW Legal Defense and Education Fund's "Guidelines for Management: Eliminating Sexual Harassment from the Work Environment." These guidelines discuss the components of good initial and refresher training programs and how to tailor trainings for supervisors and managers, female and male employees, and the people designated to receive and investigate harassment complaints.

Additional specialized training should be provided for investigators. They need to learn, for example, that turning the first interview into an intense cross-examination rather than eliciting facts in a nonjudgmental manner will be counterproductive. A recent Business Law Today article, "When You Get a Sexual Harassment Complaint," provides an extensive list of questions for the first interview, with advice on how to conduct this and the rest of the investigation.(12) The ABA Tort and Insurance Practice Section sells a videotape called "Investigating Sexual Harassment Complaints: Demonstration and Training."

Indirect Evidence

Training for partners and others with supervisory responsibilities should include clues that sexual harassment is occurring and ways to learn about the existence of problems even when there are no complaints. This is critical because even in the most supportive environment, very few victims report harassment. Like victims of any type of sexual abuse, they fear loss of privacy, disbelief, and retaliation.

An important clue is a sudden drop in an associate's evaluation ratings from a senior associate or partner with whom she or he usually works. There may be a legitimate reason, but abruptly lowered ratings may also be a form of retaliation for refusing sexual advances, or they may be a reflection of performance that has indeed dropped, but as the result of sexual harassment.

Another source of information is exit interviews for legal and nonlegal employees leaving the firm. Departing employees are often more comfortable about voicing complaints than are those on the job. The interviewer should ask whether there was anything or anyone who interfered with their work or made them uncomfortable.

Finally, prevention measures such as sexual harassment policies and training arc pointless if the firm leadership is sending another message nonverbally. Why should a harasser desist or the target of sexual harassment believe that a complaint will be taken seriously if the firm turns a blind eye to the harasser who acts publicly?

A genuine commitment from the leadership to create and sustain a law-firm culture in which everyone is treated with respect is the essential ingredient in preventing sexual harassment. One way to make this commitment clear is to mainstream your sexual harassment policy by making "Does not engage in sexual harassment" a criterion in performance evaluations.

Third-Party Harassment

Specialists in employment discrimination law predict that there will be more and more cases involving third-party harassment - an employee harassed by a non-employee or a non-employee harassed by an employee.(13) Employers arc required by law to provide a work environment free of harassment, and that environment includes the people with whom the firm causes an employee to come into contact. Harassment by clients, for example, may take the form of pressure for dates, including threats to pull the account if the attorney does not comply, and lewd remarks during conferences and depositions.

Clients who harass law-firm employees present a problem similar to the rainmaking partner who is a harasser. Firms are reluctant to offend clients lest they take their business elsewhere. But the law makes no exception for rainmaking partners or clients, nor for what may be the most awkward third-party, harassment problem a firm can face - sexual harassment by a judge.

Since 1984, supreme court task forces on gender bias in the courts in 22 states and one federal circuit have published reports documenting the same problems with sexual harassment as the surveys of female partners and associates cited earlier. Female attorneys are being sexually harassed by judges, by court personnel, by colleagues, and especially by opposing male counsel.

In Maryland, for example, the task force reported that in response to its attorneys survey, 19 percent of female attorneys answered that some judges+ subject female attorneys to verbal or physical advances, and 47 percent of female attorney said that that other counsel male attorneys said that other counsel were making these kinds of advances. 14

The Ninth Circuit Task Force on Gender Bias in the Courts found that 60 percent of women attorneys practicing in the federal courts reported that during the past five years they had been subjected to unwelcome sexual advances or other forms of sexual harassment by - in descending order of frequency - opposing counsel, colleagues, clients, judges, and court employees.(15)

One gender bias task force had to establish a subcommittee to hear the testimony of women lawyers who claimed that a male judge on the task force invited female attorneys appearing before him on dates, and in such a way that they worried that refusing him would harm their clients. Some judges have been disciplined for sexual harassment.(16)

Obviously, confronting judge about such behavior is difficult. If your state has a gender bias task force that has created a procedure for receiving informal complaints, that is a place to begin. Also consider speaking to the administrative judge in the offending judge's county.

Harassment by opposing male counsel, whom female attorneys report as the worst offenders, affects law firms in two ways. A lawyer at your firm may be harassed by an opponent, and a lawyer at your firm may be doing the harassing. Additionally, your harassing lawyer may be harassing not only opposing counsel, but clients as well.

Partners, associates, and support staff need to know that the firm is prepared to intervene in situations of third-party harassment. Your firm's policy should state that anyone harassed by a third party in a work-related situation should file a complaint and may be assured that action will be taken. Your policy and training should also make clear that the firm will impose sanctions on its own employees if they sexually harass clients, opposing counsel, or others outside the firm.

Codes of Conduct

An indirect but important way to minimize sexual harassment by judges, oppossing counsel, and attorneys in your own firm is to support amendments to judges' and lawyers' codes of conduct that establish new professional norms explicitly barring this behavior. The 1990 American Bar Association Model Code of Judicial Conduct includes new Canon 3(B)(5), which directs judges not to manifest bias or prejudice on eight grounds, including sex, and not to permit those under the judges' direction and control to do so.

The commentary to Canon 3 states, "A judge must refrain from speech, gestures or other conduct that could reasonably be construed as sexual harassment and must require the same standard of conduct of others subject to the judge's direction and control."(17)

State codes of professional responsibility are increasingly making it professional misconduct for a lawyer to, in the words of the Minnesota code, "harass a person on the basis of sex, race [etc.] . . . in connection with a lawyer's professional activities" or to "commit a discriminatory act, prohibited by federal, state or local ordinance, that reflects adversely on the lawyer's fitness as a lawyer."(18)

Explicitly barring sexual harassment in judges' and lawyers' codes of conduct ensures that this issue will be discussed in judicial, legal, and continuing legal education programs on ethics. The ban also puts judges and lawyers on notice and provides a clear standard for disciplinary commissions.

Fraternization 

Should law firms prohibit employees from dating one another, in order to avert the possibility of sexual harassment or retaliation when a relationship ends badly,? Should there be a prohibition only on superior-subordinate socializing, because it presents the question of whether the subordinate is truly acting freely?

The sexual harassment policy of Dorsey & Whitney in Minneapolis puts everyone on on notice about these concerns without imposing a total ban on intra-firm socializing:

Consenting romantic and sexual relationships between a partner or an employee and his/her subordinate, while not expressly forbidden, arc generally, considered very, unwise. The respect and trust accorded a person by, his/her subordinate, as well as the power exercised by that person in evaluating or otherwise supervising his/her subordinate, greatly, diminish the subordinate's actual freedom of choice. Therefore, each Dorsey, & Whitney partner and employee should be aware of the possible costs of even an apparently, consenting sexual relationship. A partner or an employee who enters into a sexual relationship with another person, where there there exists a difference in power between the persons involved, should realize that, if a complaint of sexual harassment is subsequently made, it will be exceedingly, difficult to prove immunity on grounds of mutual consent.(19)

Economics of Harassment

Eliminating sexual harassment presents a special challenge because structurally a law firm is not a corporate pyramid that runs on top-down directives. Rather, a law firm is a horizontal array of individual partners running individual fiefdoms.

Although management-committee partners may be first among equals," partners arc to a large extent each other's peers and are likely to be reluctant to criticize one another's behavior. This reluctance is compounded when the offender is a significant rainmaker, a reality of particular concern today when the economics of law practice make major producers more valuable than ever. Nonetheless, the rogue elephant cannot be permitted unrestrained license, because ultimately the firm will pay in many ways.

A rainmaker's book of business is readily quantifiable, but it is harder to see how much sexual harassment costs. That cost is considerable, even apart from litigation. An extensive study of the Fortune 500 service and manufacturing companies determined that sexual harassment costs the average company in this category $6.7 million a year in lost productivity.(20) This figure includes women and a few men who quit, who simply don't carry out their jobs, and who use sick leave. The victim's co-workers who know what the situation is also may experience a decrease in productivity.

Although liability at the end of a lawsuit is only one small part of the cost of sexual harassment, the liability ante is up because of the Civil Rights Restoration Act of 1991.(21) For the first time, sexual harassment victims arc permitted to collect compensatory and punitive damages under Title VII of the Civil Rights Act of 1964.(22) These damages are currently, capped in a range of $50,000 (for a defendant with 15 to 101 employees) to $300,000 (for a defendant with more than 500 Employees).(23) But the pending Equal Remedies Act is expected to change that.(24)

Although the time, effort, and cost of implementing an effective sexual harassment policy are considerable, the economic and social costs of not doing so are potentially even higher.

What Behaviors Constitute

Sexual Harassment?

* Demanding sexual flavors from another in exchange for favorable reviews, assignments, promotions, continued employment, or promises of same.

* Engaging in continual or repeated unwanted sexual jokes, language, epithets, flirtation, propositions, or advances.

* Making graphic verbal comments about an individual's body, sexual prowess, or sexual deficiencies.

* Describing an individual using sexually degrading or vulgar words.

* Leering, whistling, touching, pinching, brushing the body, assault, coercing sexual acts, or making suggestive, insulting, or obscene comments or gestures.

* Displaying sexually suggestive objects, pictures, posters, or cartoons in the workplace.

* Name-calling or relating stories, gossip comments, or jokes that may be derogatory toward a particular sex.

* Displaying sexually suggestive graffiti.

* Retaliating against employees for complaining about such behaviors.

* Asking questions about sexual orientation or preferences.

* Consistently, harassing only members of one sex, even if the content of the verbal abuse is not sexual.

Source: ABA Comm'n on Women in the Profession, Lawyers and Balanced Lives: A Guide to Drafting and Implementing Workplace Policies for Lawyers (1990).

Resources Available to Help

Prevent Harassment

* ABA Comm'n on Women in the Profession, Lawyers and Balanced Lives: A Guide to Drafting and Implementing Workplace Policies for Lawyers (1990). American Bar Association Member Services Dept., 750 North Lake Shore Dr., Chicago, IL 60611. Tel. [phone]; $44.95 plus $3.95 handling. The chapter on sexual harassment may be purchased separately for $15. Bulk discounts are available.

* California Women Lawyers, Sexual Harassment Policy Guidelines (1992). Tel. [phone].

* New York State Bar Assoc. Committee on Women in the Law, Sexual Harassment: A Report and Model Policy for Law Firms (1992). Tel. (518) f87-5561.

* Philadelphia Bar Assoc., Model Employer policy Prohibiting Sexual Harassment. Tel. [phone].

* ALI-ABA, Law Firm Policies on Sexual Harassment: Development and Implementation (videotape). Tel. (800) CLE-NEWS; $75.

* NOW Legal Defense and Education Fund, Guidelines for Management: Eliminating Sexual Harassment from the Work Environment. Available from NOW LDEF, 99 Hudson St., New York, NY 10013; $15.

* Lawrence R. Levin and Jonathan Vergosen, When You Get a Sexual Harassment Complaint, BUSINESS LAW TODAY, Jan.-Feb. 1993, at 10.

* ABA Tort and Insurance Practice Section, Investigating Sexual Harassment Complaints: - Demonstration and Training (videotape). Tel. [phone]; $175 ($125 for TIPS members) plus postage and handling.

Notes

(1) Roxanne B. Conlin, Opening Our Eyes to Sexual Harassment, TRIAL., May, 1993, at 7. (2) Deborah Squiers, Firm's Pact Sheds Light on Harassment Policies, N.Y. L.J., Dec 31, 1990, at 1; see EEOC v. Paul, Hastings, Janofsky & Walker, No. 90-CIV-6304 (S.D.N.Y. Dec. 20, 1990). (3) Charles C. Hardy,, Law Clerk Wins $480,000 in Sexual Harassment Suit, SAN FRANCISCO CHRON-EXAMINER, Oct. 14, 1990, at BI; see Nunez v. Eskanos & Adler, No. 64192-7 (Cal., Alameda County Super. Ct. Oct. 15, 1990). (4) Dale Russakoff, Lawyer Found to Have Harassed Associate, WASH. POST, Aug. 7, 1993, at DI; see Frederick v. Reed, Smith, Shaw & McClay, and Richard Glanton, No. 92-CV-0592 (E.D. Pa. Aug. 6, 1993). (5) John E. Morris, Partner Accused of Sexual Harassment, THE [SAN FRANCISCO] RECORDER, Apr. 7, 1993, at 1;, see Rossman v. Baker & McKenzie and Martin Greenstein, No. 641912-7 (Cal., San Francisco Super. Ct. filed Mar. 25, 1993); Weeks v. Baker & McKenzie and Martin Greenstein, No. 943043 Cal., San Francisco Super. Ct. filed May. 20, 1992). (6) Emily, Courie, Women in Large Firms: A High Price of admission?, NAT'L L.J., Dec. 11, 1989, at S2. (7) J. Stratton Shartel, Discrimination by Clients Limits Opportunities, Female Litigators Report, INSIDE LITIG., Feb. 1993, at 1. (8) 29 C.F.R. [sections] 1604.11(a) (1993). (9) 477 U.S. 57 (1986). (10) Daniel Goleman, It's About Power, Not Lust, N.Y. TIMES, Oct. 22, 1991, at Cl. (11) Deborah Mason, The Pain of sexual Harassment After 50, NEW CHOICES, Sept. 1993, at 16. (12) Lawrence R. Levin & Jonathan Vergosen, When You Get a Sexual Harassment Complaint, BUS. L. TODAY, Jan.-Feb. 1993, at 10. (13) Mark Hansen, The Next Litigation Frontier?: Claim Against Employer for Third-Party Harassment on the Rise, A.B.A. J., Sept. 1993, at 26. (14) MARYLAND SPECIAL, JOINT COMM. ON GENDER BIAS IN THE COURTS 125 (1989). (15) FINAL REPORT OF THE NINTH CIRCUIT GENDER BIAS TASK FORCE 69 (1993). (16) Marina Angel, Sexual Harassment by Judges, 45 U. MIAMI L. REV. 817 (1991). (17) MODEL, CODE OF JUDICIAL CONDUCT, Canon 3(B)(5) (1990). (18) MINN. RULES OF PROFESSIONAL CONDUCT Rule 8.4 (Supp. 1993). (19) ABA COMM'N ON WOMEN IN THE PROFESSION, LAWYERS AND BALANCED LIVES: A GUIDE TO DRAFTING AND IMPLEMENTING WORKPLACE POLICIES FOR LAWYERS, Pt. III, at 8 (1990). (20) Ronni Sandroff, Sexual Harassment in the Fortune 500, WORKING WOMAN, Dec. 1988, at 69. (21) Civil Rights Act Of 1991, Pub. L. No. 102-166, 105 Stat. 1071. (22) 42 U.S.C. [sections] 2000c-l to -16 (1988 and Supp. Ill 1991). (23) 42 U.S.C. [sections] 1981a(b)(3) (Supp. III 1991). (24) See H.R. 224, S.17, 103rd Cong., 1st Sess. (1993) (removing all references to dollar limitations on compensatory and punitive damages under the act).

Lynn Hecht Schaftan is an attorney with the NOW Legal Defense and Education Fund in New York City and is an adviser to the ABA Commission on Women in the Profession.