What Your Firm Needs to Know About Sexual Harassment By: Mary Anne Ackourey, Freeman Mathis & Gary, L.L.P.

An increasingly pervasive issue in the workplace, sexual harassment is no joking matter. Regardless of whether an employee's complaint is valid or fabricated, sexual harassment claims  can be very expensive and have a negative effect on law firm attitudes, reputation, performance and productivity. As the number of sexual harassment claims continues to grow, law firms need to make it their business to be aware of sexual harassment in their workplace and to develop strategies for preventing sexual harassment.

This article will discuss the top “need to know” sexual harassment areas –including identifying “harassment,” understanding your exposure to sexual harassment claims, and strategies to minimize liability for sexual harassment.

• Understand The Enemy  

What is sexual harassment?  There are two general types of sexual harassment.  One type of sexual harassment occurs when  submission to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature is made either explicitly or implicitly a term or condition of employment.   The clearest example of this type of sexual harassment is a lawyer who conditions a legal assistant’s job raise on having a sexual relationship with him or her. 

The other type of sexual harassment which is more common in a law firm setting is hostile work environment sexual harassment.  A hostile work environment exists when unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature has the purpose and effect of unreasonably interfering with an employee’s work performance or creating an intimidating hostile or offensive work environment.

Whether a particular situation is a hostile work environment will turn primarily on the details of the situation at hand.  The courts will look at a variety of factors, including: (1) the frequency of the conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere and offensive utterance; (4) whether it unreasonably interferes with an employee’s work performance, and (5) the effect on the employee’s psychological well-being.   While a few, isolated sexually oriented comments generally are not the type of conduct which will be sufficient to rise to the level of sexual harassment, physical sexual touching, such as rubbing or grabbing another person is more likely to create a hostile work environment. 

Sexual harassment is not limited to cases where the alleged harasser and plaintiff are of the opposite sex.  In other words, same-sex harassment – such as male harassment of other males is prohibited if it is due to a bias based on sex.  The courts, however, have distinguished between same-sex harassment and sexual orientation discrimination.  Under federal law, an employee’s sexual orientation is not protected.  If your law firm has an office outside of Georgia, however, you should be aware that some state laws prohibit sexual orientation discrimination. 

·         Beware of Clients, Vendors, and “Outside of Firm” Harassment

Two of the most widely held mistaken beliefs are: (1)  that only your employees can create a hostile work environment and, that  (2) conduct that occurs outside of the law firm cannot be sexual harassment.  To the contrary, law firms can be responsible for sexual harassment of non-employees, such as firm clients, vendors, or other individuals who are present from time to time in your law firm.  An example case concerned an employee who sued her employer for harassment from a customer she regularly visited.  The harassment from the customer included lewd jokes, occasional touching, and repeated requests for dates.  On two occasions, the employee complained to her supervisor.  Subsequently, the company removed from the employee’s responsibility the account that included the harassing customer and her pay was reduced.  The company argued that it could not be responsible for the sexual harassment of the employee by a customer because it occurred “outside of the workplace.”  The court, however, rejected this defense and explained that the company could not evade the law because its employees entered customers’ premises while performing their job duties. 

Another area of confusion concerns conduct that occurred outside of work, particularly firm-sponsored events like retreats or holiday parties.  Firm sponsored off-site meetings or entertainment are frequently the subject of a sexual harassment complaint, and firms need to be aware that they also may be responsible for conduct that occurs outside of the office.  For this reason, your firm should consider taking steps to deter potentially harassing conduct at parties or outings. 

·         Understand The Liability Issues And Risks

Title VII of the Civil Rights Act  is the  main federal law that governs sexual

harassment.  If your firm has an office outside of Georgia, you should be aware that some states also have special laws which prohibit sexual harassment. 

The Supreme Court has outlined the circumstances in which employers may be liable for sexual harassment by supervisors and by co-employees.  For misconduct by supervisors, an employer will be liable for the harassment even if it did not result in a tangible job action, such as a demotion or termination unless it can show (1) that it took reasonable steps to prevent sexual harassment and prompt remedial measures once it learned of the misconduct and (2) the employee did not take advantage of reasonably available opportunities to complain about the harassment.  This defense most likely will be successful in hostile work environment cases where the law firm has a comprehensive complaint procedure for reporting harassment claims.  On the other hand, where the harassment culminates in a tangible job detriment, such as a termination or demotion, the employer will be liable for sexual harassment even if the employee failed to report it.  For example, where a supervisor terminates an employee for failing to acquiesce to a demand for sexual favors, the employer will be liable even if it did not know about the supervisor’s misconduct. 

If the alleged sexual harassment was by a co-employee, such as another lawyer or staff employee, who was not the employee’s supervisor, the firm will be liable for the harassment if the employee can show that the firm knew or should have known about the harassment but failed to take steps to end the harassment.  Again, the success of this defense will depend largely on a law firm’s ability to demonstrate that it had a comprehensive sexual harassment policy and reporting procedure which the employee failed to utilize. 

• Develop An A+ Policy And Tell Your Employees About It 

The best defense to employee claims of sexual harassment is a good offense.   In the sexual harassment arena, an employer facing a sexual harassment claim will need to be able to show that it exercised reasonable care to prevent and promptly correct sexual harassment.  This generally requires an employer to establish, disseminate, and enforce an anti-harassment policy and complaint procedure. 

An “A+” policy should include the following elements:

·         A clear explanation of prohibited conduct

·         A clearly described complaint procedure that provides accessible avenues of complaint and which allows employees to go over their supervisor’s head if the supervisor is the individual responsible for the conduct

·         A complaint process that provides for prompt, thorough, and impartial investigation

·         Assurance that employees who  make complaints of harassment or provide information related to such complaints will be protected from retaliation

·         Assurance that the employer will protect confidentiality to the extent possible

Once you develop your “EEO” or “no- harassment” policy, be sure that it is disseminated to all of your employees and that they know about it.  Having a policy with which employees are not familiar will not be helpful to prevent sexual harassment or insulate your firm from liability.  In connection with the distribution of the policy, one way to emphasize its existence is to utilize a sign-off sheet by which an employee signifies that he /she has received and read your policy on sexual harassment.  Firms also should post their policy in a prominent area for employees to view, such as on a break room bulletin board.  Another effective way to restate your policy is to discuss it at routine staff and attorney meetings and to redistribute it annually with employee paychecks. 

·         Train, Train, And Train Your Employees

The existence of general written policies prohibiting sexually discriminatory conduct, standing alone, will not automatically insulate an employer from liability.  The Supreme Court has stated that, “the employer has a greater opportunity to guard against misconduct by supervisors than by common workers; employers have greater opportunity and incentive to screen them, train them, and monitor their performance.”  Thus, the general non-discrimination policies should be accompanied by training of your attorneys and administrative staff.  In most situations, your associates are your first line of defense, and they often will see and hear things well before your firm administrator or managing partners do.  Your training should include instructing attorneys and other supervisory personnel about the type of behavior that constitutes sexual harassment and how to address or report complaints of harassment they receive.

·         Investigate Sexual Harassment Complaints Immediately

A law firm may avoid liability for sexual harassment when it thoroughly and promptly investigates a complaint of sexual harassment.  Courts have found employers are not liable for sexual harassment where they conduct a thorough and prompt investigation.  For example, in a recent case, an employer that promptly investigated every complaint lodged by an employee was not liable for sexual harassment even when the  employer concluded that harassment had not occurred.  The key to that case was the employer’s prompt and thorough investigation. 

In addition to conducting an investigation immediately, a law firm also should determine the appropriate sanctions when sexual harassment has occurred.  In determining disciplinary measures, a law firm’s management should keep in mind that the discipline should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not occur again. Examples of remedial measures include: written reprimands, transfers or reassignments, demotions, suspensions or termination.  Firms, however, also should ensure that the disciplinary measure is proportionate to the offense so as to avoid potential claims by the harasser.   In addition, when determining the appropriate remedial action to end the harassment, firms should guard against taking any action that would adversely affect the employee who has lodged the complaint.

·         Be Smart And Thorough In Your Investigation

The investigation should be conducted by a single individual, thereby restricting access to the information and limiting the number of people with knowledge of the events.  All complaints of sexual harassment should be promptly and fully investigated, and the firm should make a detailed written report of each aspect of the investigation.  The following procedure should be followed in investigating all complaints of sexual harassment:

Understand that the objective of the investigation is to determine whether the allegations of harassment are true to the extent practicable, and to take appropriate remedial action to stop the harassment

Document review: Review the personnel files of the complainant and the alleged harasser; charges, complaints and grievances against the complainant and the alleged harasser for a pattern of similar complaints or motive; reports of other investigations concerning the victim or alleged harasser; and your firm’s policies on discipline and sexual harassment.

Interview The Complainant:               

• Apprise the complainant about the employer's policy prohibiting harassment.
  
• Advise the complainant about the employer's efforts to limit disclosure of information obtained during the investigation.  Tell the complainant not to discuss the allegations with others.  Instruct the complainant that it will be necessary, at some point, to discuss the claims with the alleged harasser and to give the alleged harasser the opportunity to respond to the charges.
  
• Assure the complainant of protection against any unlawful reprisal or retaliation.
  
• Obtain detailed information on each incident of alleged harassment.  Determine, to the extent possible, when the incident occurred, where it occurred, what precisely was said or done by both parties, whether there were any witnesses and determine if there are any documents containing information about the alleged incident.
  
• Ask the complainant to identify any other employees or persons who have been harassed by the same person and how the complainant knows of the alleged harassment.
  
• Consider preparing a written statement for the complainant to sign.  This is particularly important if the harasser is fired.

Interview Other Witnesses Identified by the Complainant:

·                     Get detailed account of what occurred

·                     Obtain witness statement

Interview the Alleged Harasser

·                     Apprise the alleged harasser of the firm’s policy prohibiting harassment which requires the firm to investigate every allegation of harassment

·                    Explain the purpose and status of the investigation, and describe the confidentiality of the process

·                     Emphasize the legal prohibitions against reprisal or retaliation

·                     Tell the alleged harasser not to discuss the allegations with other employees

·                    Obtain a detailed account of each incident from the alleged harasser and obtain a statement of one as given by the complainant

·                    If the allegations are denied, explore possible motives which the complainant or witness would have to lie

·                    Investigate any contentions by the alleged harasser that the conduct was not unwelcome

·                     Explain the next step in the investigation

·         Make A Decision At The Conclusion Of Your Investigation

Following the investigation, your firm must objectively determine what is the likely or plausible version of the facts and what actions should be taken consistent with the results of the investigation and your firm policies.  A report should be prepared of the investigation and all investigative materials, including any witness statements, should be preserved in a confidential file. At a later date, your firm may be required to demonstrate when and how it investigated the harassment complaint.

Editor: Todd A. Wiggins (twiggins@cpmas.com) (This publication is the property of the Atlanta Association of Legal Administrators. Reproduction or reprint without prior permission is strictly prohibited. Click here to request reprint permission.)

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