More than any type of professional, lawyers should know the laws regarding sexual harassment. So why does it happen in law firms and corporate law departments?
In 1991, America was riveted by Anita Hill's testimony during Clarence Thomas' Supreme Court nomination hearings. As the country debated the "he said/she said" spectacle, the irony was not lost among lawyers: Of all professionals, shouldn't lawyers have had a better understanding of the law?
Fifteen years later, although the American workforce—due to the prevalence of training—has a much greater understanding of sexual harassment, which is considered a form of sex discrimination under the 1964 Civil Rights Act, the trend in filing reports has remained fairly steady. In fiscal year 1992, according to the U.S. Equal Employment Opportunity Commission (EEOC), there were 10,532 charge receipts filed and resolved under the act that prohibits sexual harassment—9.1 percent were filed by men. In 2005, there were 12,679 charge receipts filed—14.3 percent by men. The highest year for all groups was 1997, with 15,889 charge receipts filed—11.6 percent by men. The highest year for filings by men was 2004, with 15.1 percent.1
Unfortunately, law firms and corporate law departments are just as susceptible to incidents of sexual harassment as other industries. Workplace training may be prevalent today but, according to employment lawyers specializing in these claims, it is still crucial to review what sexual harassment is and is not, its implications on the workplace, and how legal leaders can work to prevent it while proactively handling any complaints—even though those being trained work in a legal environment.
For this story, Diversity & the Bar® tried unsuccessfully to find attorneys who claim to have been sexually harassed to discuss their experiences anonymously. Although candidates were identified, they were unwilling to speak with us. Thus, we ask why? Is it that these practitioners fear retribution? Are they afraid of the consequences of informing management?
Often, sexual harassment claims are not publicized simply because of the nature of the claim, says Anna gobia Masters, a partner in Winston & Strawn's Los Angeles office who concentrates her practice in labor and employment relations litigation and counseling. "Most law firms, if not every law firm, are going to encounter a situation that involves alleged sexual harassment, and it's just a question of how it's handled and if it's resolved or not. It's there because you have people of different sexes and sexual orientations thrown together in a very intense environment—ingredients that are a fertile environment for harassment."
According to a recent study conducted by The Gallup Organization titled, "Employee Discrimination and Engagement in the Workplace," about 42 percent of American workers believe that employers retaliate against employees who complain of discrimination. It is even worse for those who say they have been treated unfairly: Sixty-seven percent of those who reported discrimination believe employers retaliate against employees. Forty-six percent of women, 52 percent of people without high school diplomas, 54 percent of African Americans, 52 percent of Hispanic Americans, and 30 percent of Asian Americans say employers react negatively toward employees who claim discrimination.2
Employment attorneys and plaintiff's attorneys interviewed cited several incidents within law firms and law epartments, most of which were settled out of court.
Sexual harassment within a legal setting can be riskier than in other corporate or blue-collar fields, says Masters. "If you harass an attorney, a lawyer has, in general, more access to other attorneys and the law. It may be the harassed lawyer is more likely to respond with another practitioner right away and be aware of the rights and remedies and do something," she explains. "Attorneys are human beings, and we get hurt just like everyone else. The damage you can do to someone, if in fact there is harassment, is the same."
Gayla Crain, managing partner of the Dallas office of Epstein Becker Green Wickliff & Hall and a member of the health law, labor and employment, and national litigation practices, agrees. "You don't see many claims against law firms going to trial because everyone knows it could have a big outcome for the law firm," she says. "A jury could kill them—they don't like lawyers to begin with and when they find they can punish a lawyer for doing something they know is wrong, they will."
Unwelcome Environment
According to the EEOC, sexual harassment is "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment."3
Employment lawyers put sexual harassment cases into two categories: quid pro quo, where sexual favors are demanded in exchange for a raise, promotion, or other "reward;" and a hostile work environment, where the overall culture of the office is sexually demeaning, with a prevalence of sexually explicit material, jokes, email, even inappropriate touching. These incidences cause discomfort and, therefore, complaints.
For harassment to be unlawful, it has to be severe and pervasive, says David G. Bowman, director of the Morgan Lewis Resources Workplace Training and Consulting and of counsel in Morgan, Lewis & Bockius' labor and employment law practice."The tricky thing about proving pervasive is it could be 10 people doing 10 different things," he says. And often, people will simply go along with offensive behavior because they are afraid of retaliation, confrontation, or peer pressure, he adds. "Sometimes people will laugh along or suggest they consent to inappropriate behavior when they actually find the behavior to be offensive. Most people, when they go to work, want to get along with their colleagues, work in a pleasant environment, and be a part of the team. If the team starts acting inappropriately, it takes courage to stand up and say, 'That's inappropriate.' "
A key factor in sexual harassment is that the behavior must be unwelcome, which can sometimes be hard to prove, explains Teresa R. Tracy, a partner in the Los Angeles office of Baker Hostetler in the labor and employment law litigation practice. "That's the stumbling block for a lot of employees because, as human beings, perhaps we're not the best at accurately communicating our reactions. Many of the ways people try to deal with it send the wrong message," she says.
For example, if a more junior associate or administrative staff member dislikes an off-color joke made by a senior attorney, "It wouldn't be surprising for them to make a comment like, 'Oh, you're really bad. Don't say that stuff,' but in a bantering way that could easily be interpreted as someone thinking it's funny and doesn't clearly communicate the true offensiveness," Tracy explains.
Employment law experts say they see fewer quid pro quo cases today than hostile work environment situations, but sexual harassment still takes many forms and crosses genders. Cases can be male-to-male, male-to-female, female-to-female and female-to-male, and also involve attorneys who are gay or lesbian. There is no one type of victim, but many victims have traits in common, says Masters. "It's someone who is a little vulnerable for a particular reason, usually a subordinate of some sort," she says. In a law firm setting, that includes administrative support employees, paralegals, and junior-level associates. "It's a very frightening experience to meet someone who has been an attorney for 25 years and come work for that person—it can be very intimidating," Masters adds. "Mid-level and senior-level associates tend to be more trained and confident than when you're starting off in a law firm."
Harassment typically occurs when a manager is on a "power trip," says Crain. "If he can find a vulnerable or weak employee—it doesn't have to be female but most of the time it still is—that's where you're going to see problems," she says. "People who create problems for employers are the ones who don't get it or don't care. They are still going to say or do all the wrong things and they shouldn't be employed."
Dolores Y. Leal, a partner at Allred, Maroko & Goldberg in Los Angeles who has represented several plaintiffs in sexual harassment cases, agrees. "What's been surprising to me has been that some of the defendants have been prominent law firms, those who should've known better and, unfortunately, for whatever reason, didn't or didn't care," she says. "For harassers, it's not necessarily a matter of sexual interest but a matter of power—it's 'I will because I can. I will behave in any sexually inappropriate way I please because I'm the boss and you're not and I don't believe you will complain.' That's no different from any other industry. The only difference is that lawyers should know better."
Mandatory Training
Today, many employees are aware that workplace harassment is prohibited. However, they do not always have a clear understanding of the sexual harassment pitfalls. In a few states, workplace training on harassment prevention is mandatory. For law firms and legal departments, having an attorney administer the training is key to its success, according to Bowman, who oversees 12 attorneys across the country who train employees at law firms and other corporations. "This minimizes any questions about credibility," he says. "What makes a legal environment a little more complicated is some of the attorneys are very familiar with the law, and others are not but think they're experts on it. If it's a basic training on policy, they will over-read and over-examine the policy looking for loopholes. If you're not intimately familiar with the legal environment, it can derail the training. Your participants will lose interest, and you will fail to educate them on what is acceptable behavior and what is not acceptable."
Typically, sexual harassment training includes information defining harassment, a discussion about the firm or company's policy in regard to harassment and procedures for filing a complaint, and an explanation about employee rights, says Crain. Those who administer the training will often use the company's own policies and procedures as a tool for education, she adds. Trainers also provide real-world examples and have the employees discuss and react to them. "Everyone has different perceptions of what sexual harassment is," Crain explains, "so we talk it through that way."
Crain says she talks with managers—including managing partners and senior associates—more harshly. "Partners are managers who can create the liability for the firm, so I'm very direct with what they should be doing and saying. I remind them of what their obligations are. Then, if there is a complaint and the firm believes it can be substantiated, they need to take action against the person. Punish them in some way so they won't be a repeat offender."
To prevent harassment, management also must be public with its policy and show that it is enforced, says Masters. "It's not enough to have a policy hidden in some handbook, but you have to publicize and enforce it, and create within the firm a reputation that this firm enforces its policies. From there, it's responding to each particular complaint with compassion and thoroughness."
Leal agrees. In one of her cases, she represented a woman claiming to have been groped by a high-level executive. It was well-known around the company that another top executive had been having affairs so, Leal says, the accused most likely felt he could get away with the behavior. "The employer has to foster an environment where it's made very clear that behavior that is sexual in nature will not be tolerated. Those messages have to come from the very top and often," she says. "Once a year is probably not going to get the attention of employees, but if the CEO or managing partner is constantly sending out emails that this is our policy—and not because of a claim but rather just as a matter of course—people will know there is zero tolerance."
Like in other companies, law firms and corporate legal departments must show employees they will handle complaints confidentially, says Tracy. "At law firms, like any other business entity, the employees are concerned about what happens if you complain that the partner on the big case you work with makes off-color jokes to you. Will you get the good cases, good assignments, raises, and good evaluations?" she says.
Know Your Rights
Experts agree that sexual harassment—like sexual assault and abuse—is not about sex. It is about power. That means that part of the mindset of many perpetrators is that women "ask for it" by dressing or acting provocatively. Therefore, potential victims can do their part to combat that attitude and not draw attention to themselves, says Leal. "Women need to come across very professionally," she says. "Just because you wear a short miniskirt doesn't give a man the right to sexually harass you, but if you're wearing that or showing your breasts, you're probably not going to get a whole lot of respect. Behave professionally and treat others as you would want to be treated yourself."
Unfortunately, this is reality, Masters says. "Yes, we should always be able to come to work in an ideal world expressing ourselves as we want in clothing or jewelry, but there are standards," she says.
But even women who dress appropriately for the situation can be victims of harassment. A few years ago, Masters recalls, associates were allowed to wear jeans in her office. A female associate told Masters she was uncomfortable that a male partner was staring at her in her jeans and asked what she should do. "If someone is gawking at you, there are three things you can do," Masters continues. "You can go to the person and say, 'This made me uncomfortable.' You can get another person to go with you, or you can make an actual complaint."
If someone feels she has been or is being harassed, she should first confront the harasser, says Leal. "The very first step is to tell the harasser their behavior is unwelcome and inappropriate and to please stop," she says, adding that sometimes, the person does not realize he is being offensive. "If he or she doesn't stop, then escalate it and go to that person's superior, a human resources, or administrative office."
She advises clients to put it in writing so there is documentation of a complaint if there is later retaliation. Then it is up to the employer to act swiftly to investigate, decide if the complaint is valid, and take action—whether it is firing the harasser or something else. "Contacting an attorney should be the last recourse" for a victim, she adds, since it is costly, time-consuming, and emotional.
A harassment complaint is often a "he-said/she-said" situation, says Tracy. She has overseen many investigations, which involve interviewing both parties, finding witnesses, or uncovering similar incidents involving the alleged harasser. For example, in a case where a male senior attorney has a reputation for dating staff and lawyers at the firm, it might be more plausible that he pursued the complaining party, she says. Often, though, it is difficult to establish that harassment occurred, Tracy adds. times, the parties are unable to give you names of anybody that saw or heard something, and you're left with an inconclusive result. In those cases, my recommendation is always for the employer to say to the alleged harasser, 'The results of the investigation were not able to prove or disprove the allegations, but if there had been evidence you engaged in this behavior, it would be a violation of our policy. Be forewarned.' "
On the other side, the complaining party should know that the investigation is over, action was taken, and that management will respond if there is any further harassment or retaliation, she adds.
Most law firms are structured as partnerships, says Bowman, and it is common that a firm with 50 partners will run like 50 separate small businesses, with a fair amount of strong egos. Accordingly, there is often less supervision and accountability. That does not mean that law firms or legal departments have more instances of harassment than other businesses, he explains—it simply means that where supervision and accountability is lacking, people are more likely to violate the rules since they perceive that they might be less likely to get caught.
The bottom line is that sexual harassment still is prevalent and can wreak havoc on an office—even one in the legal industry. It is up to the top management in law firms and legal departments to set the tone, create the training opportunities, establish and enforce the policy against such behavior, and make employees aware of the avenues they have for complaints, says Tracy. After all, she says, "Everyone in the law department or firm has an interest in assuring that such conduct does not interfere with the work that needs to go on in the group. If you have these frictions, these festering problems, you cannot be as effective and competitive as you need to be."
Melanie Lasoff Levs is a freelance writer based in Atlanta, Ga.
NOTES
- See "Sexual Harassment Charges, EEOC and FEPA's Combined: FY 1992–FY 2005," at http://www.eeoc.gov/stats/harass.html.
- See "Employee Discrimination and Engagement in the Workplace," The Gallup Organization, (Feb. 2006).
- See "Facts About Sexual Harassment," at http://www.eeoc.gov/facts/fs-sex.html.
From the July/August 2006 issue of Diversity & The Bar®