It is more than five years since the United States Supreme Court issued its decisions in Faragher v. City of Boca Raton, 118 S.Ct. 2257 (1998) and Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2275 (1998). While these decisions made it easier for plaintiffs to prevail in sexual harassment cases, they also include a valuable affirmative defense for employers. More specifically, the Court held that an affirmative defense focusing on prevention and correction is available, so long as the employee has not experienced a tangible employment loss, such as discharge, demotion or denial of a promotion. In the absence of a tangible employment loss (for which there is strict liability), an employer can defend by proving that:
(1) the employer exercised reasonable care to prevent and correct promptly any sexual harassment; and
(2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
This article focuses on two critical elements of harassment prevention relative to law firms: the harassment policy and complaint procedure. Specific recommendations gleaned from lower court decisions and practical experience are made to minimize the likelihood there will be a claim and maximize the probability of success in the event of a claim.
A clear anti-harassment policy is a salient aspect of the firm's preventive measures. However, sometimes the content of the policy is not as clear as it should be. Here are 10 recommendations with regard to the policy statement:
1. The harassment policy should cover not only sexual but also other forms of unlawful harassment, for example, race, religion and ethnicity. The EEOC, with the approval of many district and appellate courts, has taken the position that the Supreme Court's pronouncements relative to sexual harassment apply equally to other forms of unlawful harassment.
2. In drafting the list of factors to be protected, the firm should consider not only federal but also state and local law. Although not covered by federal law, some state and/or local jurisdictions cover sexual orientation and marital status, to name just two. Of course, end with "membership in any other protected group under federal, state or local law."
3. With regard to sexual harassment, the policy should address both quid pro quo and hostile work environment harassment. With regard to both types of harassment, it is important that the policy be clear that women and men alike are both restricted and protected by the policy and that same sex and opposite sex harassment are equally prohibited.
4. The policy should include real life examples as opposed to technical legal definitions. If your attorneys/ employees don't know what the policy covers, its deterrent value is minimal. You would be surprised - or perhaps you wouldn't - how many attorneys need to be told directly what they cannot say or do!
5. The policy's prohibition should speak in terms of inappropriateness rather than illegality. That way, the firm can take corrective action without admitting that there has been a legal violation. Having Playboy or Playgirl on one's desk may not be severe or pervasive enough to be unlawful but it most certainly is inappropriate and unacceptable.
6. The policy should be clear that it covers how attorneys and employees interact not only with each other but also with non-employees with whom they come into contact in the course of their employment/work. This includes, for example, clients, court reporters and opposing counsel.
7. The policy should be clear that it applies not only to oral and written but also to electronic and Internet communications. For many plaintiffs' lawyers, the electronic trail is the road to early retirement.
8. The policy also should be clear that it is not limited to the physical workplace but also includes anywhere where attorneys/employees do business on behalf of the institution. That would include, for example, firm retreats as well as business trips, with or without clients.
9. The greatest harassment risk for any employer is dating or attempts at dating between supervisors and subordinates. This risk is even greater in a law firm in which every partner is a CEO of sorts, either in their eyes or the eyes of their subordinates. Accordingly, there is a benefit to considering a rule which provides that partners (and others with supervisory authority) cannot date attorneys or support staff over whom they have direct or indirect supervisory authority.
10. Unlike most employers, law firms cannot have an absolute prohibition on discussions of sexuality. Sexuality may be relevant in many different kinds of cases, sexual harassment, domestic relations and obscenity cases, to name just three. However, the policy can and should include general guidelines on how to address sexuality in the context of providing legal advice/defending a case.
The companion to the policy is the complaint procedure. Here are 10 recommendations to make the complaint procedure user friendly and to increase the likelihood that the failure of an attorney/employee to use it will be deemed unreasonable relative to the firm's affirmative defense:
1. The complaint procedure should be explicit that it applies not only to sexual but also all other forms of unlawful harassment. If the language states or suggests that it applies only to sexual harassment, the policy will be defective.
2. Technically, only employees can sue for harassment. That would cover associates but not partners or shareholders if they are not employees. However, sometimes, individuals are partners or shareholders in name only and are in reality employees. Plus, there are the moral and business reasons to make sure that partners and shareholders are not harassed. Accordingly, it is recommended that all attorneys (and all employees) be permitted to use the complaint procedure, regardless of their technical title, and that the complaint procedure make this explicit.
3. The policy also should be clear in terms of whose conduct is covered by it. More specifically, it is important that the policy state that its prohibitions apply not only to all attorneys (partners, associates, counsel) but also to all support employees as well as non-employees with whom attorneys/employees interact in the course of their employment/work, including clients.
4. The complaint procedure should include a bypass provision stating that the attorney/employee can contact someone other than his or her practice group chair/supervisor. The Supreme Court has made clear that a complaint procedure is defective if it does not include such a bypass provision.
5. The complaint procedure should go beyond merely having a bypass provision and include multiple points of access with EEO diversity among them. EEO diversity in the points of contacts makes it more difficult for someone to argue credibly that they did not feel comfortable with any of the points of contact.
6. If your firm has multiple offices, it is important that your complaint procedure include representatives from each. Alternatively, there could be one policy but separate complaint procedures for each office.
7. There are a few recent cases in which employees have claimed successfully that they did not know the identity of the person referenced in the complaint procedure. So use specific and accurate titles as opposed to general references to departments. Better yet, supplement your policy periodically by providing attorneys/employees with the phone numbers and e-mail addresses of the current points of contact.
8. It is important that the complaint procedure include adequate assurances about what will happen if an attorney/employee uses it; namely:
a. The firm will conduct a full and fair investigation.
b. The allegations will be kept as confidential, disclosed only to those who have a need to know for the firm to investigate and/or take corrective action. Be careful not to promise absolute confidentiality since that is a promise which the firm cannot honor.
c. The firm will not tolerate unlawful retaliation. This provision should cover not only complainants but also witnesses and others who participate in the investigatory process.
d. The firm will take disciplinary and other corrective action if there has been unlawful and/or inappropriate conduct. It is critical that the policy not be restricted to unlawful behavior but also address inappropriate behavior so that the firm does not have to wait until there has been and/or concede illegal conduct to take corrective action.
9. The complaint procedure should not require that complaints be in writing. As a legal matter, a firm cannot ignore an oral complaint. As a practical matter, requiring that complaints be in writing surrenders to the attorney/ employee (or his or her attorney) the power of the pen.
10. It is recommended that there be an appeals procedure which an attorney/employee can use if they are not entirely satisfied with how their complaint has been handled. It is recommended that the firm request that appeals be in writing so that there is a clear record of what was said - as well as what was not said. Of course, the firm cannot ignore a legitimate appeal simply because it was delivered orally.
Of course, the policy and complaint procedure have value only if they are disseminated. It is recommended that they be re-published each year to all attorneys/employees. Records of receipt should be retained. The policy and complaint procedure also should be included in a new attorney's/employee's orientation with appropriate documentation reflecting this.
While a policy and complaint procedure are necessary elements of a comprehensive prevention program, they are not sufficient. Other necessary elements include supervisory (broadly defined) training and employee education. But those are issues for another article for another day.
Jonathan A. Segal is a Partner in WolfBlock's Employment Services Practice Group. Author's Note: This article should not be construed as legal advice or as pertaining to specific factual situations.