Sexual Harassment - What If It Happened at Your Firm?
The associate is blushing. Her forehead glistens with sweat. “Lately Karl has been complimenting me a lot on my figure and my taste in dresses. It makes me feel uncomfortable.”
You’re managing partner (or administrator) at this large firm. What do you say to these complaints about a partner?
Maybe you confront the partner. But for the sake of our story, let’s say you don’t. “Really, Wendy, are a few compliments so terrible? Come on, be a good sport.”
"Law firms tend not to take sexual harassment complaints seriously enough,” says Laurel Bellows, chair of the ABA Commission on Women in the Profession, and partner at the Chicago law firm, Bellows & Bellows. “Firms should investigate an employee’s complaint as meticulously as they would a client’s. But it’s the old adage: ‘The shoemaker’s daughter wears no shoes’."
If Wendy had complained, “Karl patted my buttocks,” her managing partner probably would not have believed her. “Firms tend to require witnesses, which is almost impossible,” says Bellows, who has represented about 50 women in sexual harassment matters. “If firms realized how painful and humiliating it is for women to complain, they’d know how unlikely it is that the women are lying.”
Dr. Freada Klein, president of Klein Associates in Boston, has helped dozens of law firms resolve and prevent sexual harassment. “We surveyed lawyers who experienced harassment, bias or discrimination while working for their firms in the past year. About 60 percent were too afraid to complain.” Maybe the firm wouldn’t believe them. Or maybe it would leak their embarrassing story, and then coworkers would label them “the victim.” Or worse, the harasser might get them demoted. Partners could axe them from important projects. Maybe the harassers were also mentors. How many people would give up a valuable mentor, to dodge a few off-color remarks?
Wendy leaves your office. Do you reassure yourself: “She’ll adjust to Karl’s compliments. Karl brings in more business than anyone else here. A smart lawyer like that isn’t going to set us up for a harassment suit!”
“Law firms often think they’re above the law,” Klein says. “Yet there’s even more sexual harassment in law firms than in Fortune 500 companies.” Klein has surveyed personnel: 17 percent of female attorneys -- and 12 percent of support staff -- said they’d been harassed in the past year. You’re no safer in a small firm than you are in a large one. But hire more women, and your harassment will go down. Of all the practice areas, litigation has the most hanky-panky.
Klein says harassment complaints are on the rise. “People are more aware of the problem. Also, lawyers switch firms more often, so they’re more willing to report co-workers who harassed them.”
Are you ready to confront Karl, your firm’s best rainmaker?
Klein says, “Baker & McKenzie taught us a lesson: you have to hold rainmakers to the same standards to which you hold your marginal performers. And you have to take your janitor’s complaint as seriously as you’d take a complaint from a partner.”
Jonathan Vegosen -- employment and labor lawyer at Levin & Funkhouser, Chicago -- admits it can be tough to challenge a partner. “That may be partly why Baker & McKenzie got in trouble. Firms may fear that a powerful partner might retaliate by taking his business elsewhere or cutting a colleague’s compensation.” Vegosen has helped law firms prevent and deal with sexual harassment. He suggests you tell an offending partner: “None of us is above the law. While you’re an important member of this firm and you may control a lot of business, you still have to comply with the law. Because number one, sexual harassment is wrong. And number two, you could expose us to tremendous liability.”
But wait a minute. All Karl’s done is compliment Wendy’s dress and figure. Is this enough reason to give a partner grief?
“About 75 percent of subtle sexual harassment escalates over time,” Klein says. Sexual jokes could turn into, “How does your husband turn you on in bed?” This year an associate might peer up his secretary’s dress as she climbs the stairs; next year he might chase her around his desk. Klein advises law firms to try to nip harassment in the bud, by investigating even subtle behavior.
Nineteen months later, Wendy’s in your office again. This time she’s crying. “Karl kept asking me out for drinks so that we could discuss cases. Then he wanted to date me. I went along. I was afraid he’d give me bad reviews if I didn’t.
“About a month ago I told Karl I didn’t want to date him anymore. Since then, he’s taken me off the McDruther’s case. And he won’t let me socialize with him and the other partners after work. Will you please talk to him?”
“Quid pro quo isn’t always obvious,” Klein says. Law firms might be liable even if an employee willingly beds down with a harasser. Or even if an employee welcomes a relationship, then backs out and gets badgered by her ex-lover.
Most harassers are men chasing after female underlings. Often, harassers are flaunting their power. The faster women break into a profession (such as law), the more quickly harassers try to “put them in their place.” So should firms limit dating? “Firms ought to discourage consensual relationships between people of unequal power,” Klein says. She advises you write this into your sexual harassment and conflict of interest policies. “Tell people that if they’re in a romantic relationship with a subordinate, they must disclose that to the managing partner or some other representative.” The person should recuse himself from any responsibility over the lover’s compensation, performance evaluation, or assignments.
Bellows advises firms to discourage romance even between peers. “Remind people that if the relationship sours, they may risk more than a sexual harassment claim. Even if there’s no harassment, they risk losing a close working relationship. And that’s a loss for the firm.”
Do you plan to intervene on Wendy’s behalf? Do you talk to Karl? Meet with him and Wendy? Call in a consultant?
Especially when someone’s complained about a partner, you might want to hire a consultant. “That way the partner won’t feel co-workers are ganging up on him,” Vegosen says. The consultant may not even have to point a finger. “One accounting firm was reluctant to confront a very powerful partner. So they asked me to do a presentation to all the partners.” The offending partner had been making sexual remarks; Vegosen presented hypothetical scenarios that were very similar. “The partner must have gotten the message. He stopped harassing.”
Courts generally require sexual harassment to be a pattern. Your firm may be liable if you knew (or should have known) about the harassment but didn’t take prompt action. Let’s say you heard rumors that an associate was making passes at secretaries. Or you heard that a paralegal allegedly harassed co-workers at a former job. Or you saw a cheery law clerk become depressed, and afraid to go into her supervisor’s office. Vegosen says, “You need to at least ask employees, ‘Is anything wrong?’”
Has a partner suddenly denounced an associate at a partners meeting? Is he suddenly sending in bad evaluations of her? Does the paralegal frequently make jokes to the secretary, yet the secretary doesn’t smile? These too may be signs of harassment. If Wendy was being harassed by the man who repairs your photocopiers, your firm could still be liable if it didn’t act promptly.
Do you have any doubts about intervening for Wendy?
In a 1988 study, sexual harassment cost a typical Fortune 500 service or manufacturing company $6.7 million a year due to turnover, absenteeism, reduced productivity, and so forth. Each company might have saved those millions by investing $200,000 in a preventive program, according to Klein. “Many women leave firms where they and others have been harassed,” Bellows says. Others waste company time griping about the harassment, and trying to dodge it.
Bellows says, “Any firm that’s publicly known for sexual harassment is going to miss out on some of the top women law school graduates. Forty-eight percent of all law students are women.” Female grads have told Bellows they take harassment into consideration when choosing a firm.
Add to this the seven-figure verdicts. “I see a lot more of them now,” Vegosen says. “Much of the public is angry with lawyers. This could sway juries against defendant law firms.” Only about three percent of harassed employees file charges. But a large majority win or settle out of court.
How will you act on Wendy’s complaint? Let’s say you call a consultant who specializes in sexual harassment. The consultant advises, “Tell Wendy to keep a record of all of Karl’s harassment behaviors, including any witnesses. Reassure her you’ll do your best to protect her from Karl, should he strike back at her for complaining. (You are just as responsible to do your best to protect employees from retaliation as from the actual harassment.)
“Ask Wendy what she wants you to do. Does she refuse your help? Have her sign a refusal statement. Does she want you to talk to Karl? Then immediately tell him the allegations, and that the firm doesn’t tolerate this kind of behavior.
“Next you should give the firm a sexual harassment checkup. Hold a mandatory training session on what sexual harassment is, how to confront a harasser, and how to complain formally and informally. Ask each employee, in an anonymous survey or interview, ‘Have you experienced or witnessed sexual harassment at this firm? Within the last year? Please describe.’”
“Once you take the firm’s harassment temperature,” the consultant continues, “we can revise your written sexual harassment policy to suit your firm.”
If Karl persists in harassing Wendy, you may have to separate them. “You don’t necessarily have to move the harasser to another town,” Klein says. “I’ve mediated in firms where we just moved the partner’s office, and restricted interaction between him and the harassee.” You could also send Karl for mandatory counseling, cut his compensation, suspend or even terminate him.
Try as you might, though, Wendy’s chances are slim. Klein admits, “It’s almost impossible for associates or support staff to charge a rainmaker with sexual harassment, and stay on at their firms.” When the anonymous surveys come back, you are shocked. A major client regularly pressures a secretary to date his son. A partner suspects an associate is wooing a divorce client. A female paralegal gripes about the sleazy pin-up calendars a client sent all the lawyers. A male janitor felt a male secretary was coming on to him. And a male associate felt harassed by a female judge!
Let’s tackle these one at a time:
The client harasses the secretary: “You’re so pretty, honey. My son would love to meet you. Why won’t you just give in and say yes?” Klein reports that clients do 18 percent of the harassing. In a 1993 survey, 39 percent of female attorneys said clients had harassed them. Clients have stolen kisses at nightclubs, tackled attorneys to the ground, and pressured them to conduct their meetings in topless bars. Many attorneys, let alone secretaries, are too scared to complain. Will the clients get angry, and falsely accuse them? Will the firm then keep them off juicy assignments, even fire them if the client walks?
Bellows sees light in the tunnel. “Lately I’ve spoken to about five firms. They’ve figured out how to confront clients without losing them.” She adds that most people who run law firms are very offended by sexual harassment.
Vegosen says depending on the situation, you might correct the client gently, by cracking a joke. Or you could turn the tables: “How would you feel if our secretary called you ‘stud’ or ‘boy’?” You might be very tactful: “I know you’re just trying to be friendly when you tell lewd jokes to the paralegal. But that kind of behavior could be misconstrued, and I’d appreciate it if you wouldn’t do it. We like to maintain a very professional environment.” If a client kept propositioning the paralegal, you’d need to be sterner: “We have a strong policy against sexual harassment. What you’re doing is highly offensive to the paralegal. It’s also illegal. Even though you may not mean any harm by it, I have to ask you to stop.”
The partner suspects the associate is wooing a client. It happens. Bellows gives an example: “Many times attorneys have demanded sex in exchange for taking a woman’s divorce case, or for continuing to represent her.” So follow your hunch. “If a lawyer often dines with a particular client or meets with her in the office after hours, ask him if the client’s schedule demands that. And if a woman client asks to be transferred to another attorney but won’t tell you why, take it seriously. It might mean harassment.”
The paralegal doesn’t like the nudie calendars lawyers have on their walls. You felt you couldn’t refuse your client’s gift -- but maybe you should have explained to him that you could be sued for creating a hostile environment. SEC attorney Catherine Broderick complained about her disturbing work environment: senior attorneys sleeping with secretaries and junior attorneys and rewarding them with promotions and bonuses. Her boss gave her poor reviews, threatened to fire her -- and ended up paying her $128,000 back pay in court.
The male janitor feels the male secretary is “hitting” on him. “He goes out of his way to brush past me or pat me on the shoulder. He ogles me a lot. It gives me the creeps.” It’s surprising the janitor even wrote this on the survey. “People are especially reluctant to report homosexual harassment,” says Bellows, “but actually law firms take it especially seriously.”
Sexual Harassment: What If It Happens at Your Firm?
A male associate feels harassed by a female judge: “She joked that my good looks might sway her opinion of my case. If I don’t flirt back, will it hurt my client?” Klein says, “Judges and hearing officers initiate about three percent of the harassment in the legal profession. I’ve seen most firms replace the harassed lawyer if they can. They feel it’s better for the client and the lawyer. But these firms could be liable for retaliating against the lawyer’s complaint if they don’t put him on a comparable matter.”
If the lawyer was female and the judge male, there are other potential problems to consider. If you send the lawyer packing, you send a strong message to the firm: “Women attorneys aren’t as capable in appearing before judges,” Klein says. Klein advises firms to ask the attorney what she wants to do. The attorney may say, “This is unfair. I want to stay here and overcome this. I actually think this will be helpful.” And it well might be -- if, for example, the judge is cooing “baby doll” and the attorney is in front of the jury at a trial.
Even some opposing counsel get into the act. Vegosen knows of a female associate whose opposing counsel repeatedly made lewd comments about her body and asked her on dates. “The partner offered to intervene, but the attorney said she’d handle it herself.” Vegosen says if he’d been that partner, he’d have asked his other employees who dealt with opposing counsel, “Has any opposing counsel sexually harassed you?” A harasser often has numerous targets. If there’s more than one, the firm might have good reason to intervene.
Vegosen says he’d do the same if a judge harassed. “You can talk to the judge very tactfully: ‘Perhaps you don’t recognize that this is how your behavior is perceived. I’m sure you don’t intend it.’ If you’re afraid to confront the judge, you might approach a judge you know very well, a chief judge who’s responsive, or a female judge.” Vegosen says female judges are generally more understanding about the problem of sexual harassment.
It’s surprising your male associate even told you about the female judge harassing him. In 1994, the EEOC reported men only make about ten percent of sexual harassment complaints. Bellows says, “Here’s a social norm in law firms: ‘Men are more interested in sex than women are. So if a man complains that a woman’s sexual attention hurts his job performance, he must be an oddity. Real men can handle this themselves.’” Because of this social norm, men feel especially embarrassed about reporting harassment.
You meet with the consultant to revise your sexual harassment policy. “Are you following up on the Wendy-and-Karl situation?” the consultant asks. “I know you’ve moved Karl’s office, but the law requires you to do your best to prevent further harassment.” You reassure the consultant you’ll check with Wendy every couple of weeks for the next six months or so. “Now, how am I going to rewrite our policy so that it’s more than just a piece of paper?”
“Since Baker & McKenzie, most law firms have sexual harassment policies,” says Klein. “The larger firms are more likely to have them, and to have written them sooner.” Vegosen says many smaller firms (under 30 lawyers) still don’t have written policies: “They’re playing with fire.” Even a solo practitioner who only works with a secretary will still encounter judges, opposing counsel, clients.
Your policy sends a message: “We won’t tolerate sexual harassment.” It gives your employees a way to deal with harassment. And if you are sued, you’ll be less likely to pay damages.
Your top partners need to endorse your policy strongly, or it won’t work. “The head of the firm should stand up in front of everyone and present the policy,” Bellows says. “Too often I see male partners shove that into the bailiwick of a woman.”
Bellows says your policy should forbid workers from sexually harassing anyone, even when they’re off-duty. Klein disagrees, but adds, “The policy should cover you whenever you’re performing your job duties -- even if it’s Sunday and you’re speaking at a bar conference in another state.”
Klein adds, “The law requires you to create complaint channels that encourage victims to come forward. But most law firms don’t do that. Instead they tell workers, ‘You must make a formal complaint, and we must investigate’.” Many victims then freeze because know they probably won’t get confidentiality. “Firms should give employees the option of reporting to an ombudsperson, for example, who maybe mediates, and who won’t violate confidentiality except in extreme circumstances.”
On rare occasions, someone may make false accusations — maybe for settlement money, or to keep the firm from firing them, or to get back at someone for not promoting them. Bellows advises, “Don’t penalize people for false accusations. It will intimidate victims into silence, and give people license to put accusers on trial.”
Klein says, “Firms should reiterate their sexual harassment policy at least once a year.” This should be done even more often, if, for example, lawyers stage an impromptu bathing beauty contest at your summer outing. (The lawyers at one firm did!)
Now, how will you rewrite your policy? Will you forbid all sexual jokes? All passionate trysts? Tell employees not to compliment even the trendiest dress?
“Some firms hurt themselves by being too rigid,” Klein says. “They prohibit consensual relationships, for example, which is impossible to enforce. And why prohibit a wonderful relationship that isn’t causing any problem?” Other firms have warned employees not to comment on anyone’s appearance. Klein has even heard firms tell male partners not to meet with female associates or support staff in their offices with the door closed.
If your co-workers welcomes a good sexy joke, that’s not harassment. “Some behaviors offend people, even though they’re purely innocent,” Vegosen says. A lawyer’s secretary may want him to proofread over her shoulder. But let him try that with his colleague’s secretary, and he gets an angry stare. “Since Anita Hill, many people are extra-sensitive.” A partner accidentally touches an associate’s hand every time he hands her a file, and she cringes. True, he could be intentionally -- even subconsciously -- trying to touch her. But maybe he just hands over a file that way.
Bellows says, “Some partners are so paranoid about harassment lawsuits that they forbid women lawyers to take on certain cases. They don’t want the women to have to travel overnight with a man, or work many late hours with him. Other lawyers won’t ask women lawyers out for a drink after work.” Bellows says this is a very serious problem for women who want to build rapport with partners so that they can advance their careers. “Gender discrimination is not the solution to sexual harassment.”
Finally! You’ve finished revising your policy and training program. You walk the consultant to the door. “Thanks. I hope we won’t we have any more harassment at our firm, but if we do, we’re prepared to deal with it.”