The #MeToo movement has not spared law, with a federal appellate judge and the chair of one of the world’s largest law firms resigning over allegations of sexual misconduct in recent months.
News headlines regarding the allegations against Judge Alex Kozinski and Latham & Watkins Chair Bill Voge serve to highlight an underreported and widespread problem in the legal industry, according to Wendi Lazar, executive editor of a newly updated handbook published by the American Bar Association that offers the legal industry a detailed look at how to prevent and reduce sexual misconduct and bullying.
Lazar says she believes law is reaching a turning point where behaviors once tolerated or swept under the rug will now be dealt with, given the current climate surrounding the #MeToo movement. That change, she says, will likely be led by law firms’ corporate clients, which themselves are working to root out and deal with harassment in new ways.
“I believe law firms are very aware that they have clients they can lose if their heavy-hitter rainmaker does the wrong thing, says the wrong thing and somebody notices it or reports it,” Lazar said. “I do believe that will start to make a difference. Clients understand in no uncertain terms: This behavior is heinous.”
The ABA Commission on Women in the Profession’s manual, “Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession,” comes on the heels of several major efforts by the ABA to address harassment issues in the profession.
In 2016, the organization passed Model Rule 8.4(g), which creates a clear prohibition against biased behavior by lawyers "in conduct related to the practice of law" on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.
And in February, the ABA House of Delegates passed Resolution 302, a policy change aimed at the ways sexual harassment and retaliation claims are handled at legal industry employers. Resolution 302 urges employers to “adopt and enforce policies and procedures that prohibit, prevent and promptly redress harassment and retaliation” based on gender, gender identity and sexual orientation.
The handbook is a supplement to those earlier measures, one that is aimed at helping law firms craft appropriate policies and work to prevent an incident before it happens, helping them be proactive rather than reactive, according to co-editor Gregory Chiarello.
“The manual challenges law firms to think about sexual harassment as a problem rather than a liability,” Chiarello said. “What’s in the manual is guidance, it’s a how-to on corrective measures, but it also includes broader thinking on bullying and implicit bias. The idea is firms should be thinking about ways harassment can manifest, nip it in the bud, and think about it as a cultural problem, not what to do if they get a complaint so that they don’t get sued.”
Here, Law360 digs deep into the manual to examine some of the ways law firms can work to combat sexual harassment.
Breaking Through Unconscious Biases
One of the first steps to tackling harassment is addressing implicit and explicit biases. Biases regarding gender, sexuality and race can lead to the failure of a leader or someone in a position of authority to believe victims, the failure to report an instance of sexual misconduct, or make it difficult for an individual to believe an instance of misconduct is a “big deal.”
In fact, research has shown that implicit biases can result in people of both genders disproportionately believing men’s versions of events over women’s, the handbook says.
“These findings are important to recognize in relation to workplace harassment, as they can cause supervisors, colleagues and human resources representatives to disbelieve and unfairly dismiss allegations of wrongdoing, especially when made by women against men,” it says.
Legal employers can address implicit bias by simply raising awareness about it and by introducing policies and oversight aimed at disrupting those biases.
Some ways to do that, according to the manual, include increasing the transparency of decision making, work origination credit, performance evaluations and other personnel decisions; standardizing performance evaluations; educating leadership, supervisors and human resources on implicit bias and its effect on the workplace; increasing diversity in leadership so that those harmed by biased thinking — women and minorities — have the ability to craft policies and make important decisions; and by keeping implicit biases front of mind when developing and implementing programs and drafting policies and procedures, attempting to ensure they are bias-free.
“Research has demonstrated that most implicit bias is highly malleable and subject to conscious treatment or control. Small adjustments to existing systems should be sufficient to raise awareness and provide checks against implicit bias,” the manual says.
Coming Up With a Comprehensive Policy
Law firm harassment and bullying policies should seek to deter and punish harassing conduct of all kinds, and that often begins by setting out a clear and concise definition of sex-based harassment, the handbook says. That can be done by creating a broad definition and then following it up with examples of the types of things that would constitute harassment.
Additionally, any policy should not only apply to employees of the law firm, but also to others like partners, clients, contract workers and vendors who interact with attorneys in the workplace, it says. And the policy should encourage all reports of harassment, regardless of whether the person being harassed is subject to the law firm’s direct control, and should set clear procedures for how that reporting can be accomplished.
Timing is also key. According to the ABA handbook, policies should encourage prompt reporting of offensive conduct so that they can be resolved as quickly as possible, but at the same time should not preclude action when a report is made after an extended period of time, due to the fact that many victims wait until repetition of the offense before taking action.
“The policy should recognize that sex-based harassment can be a traumatic experience, and that fears of retaliation, humiliation, and career consequences keep many from speaking up. Thus, late reporting should not in and of itself preclude remedial action,” it says.
Other important elements when crafting a policy, according to the manual, include a strong statement that the firm will not tolerate harassment, a commitment to promptly investigate known harassment even if a formal complaint has not been made, procedures that afford the maximum feasible confidentiality, a statement that employees who report harassment will be protected from retaliation, a statement that the firm will take immediate and appropriate corrective action for behavior that violates the policy, an explanation of the appeals process, a mechanism for implementing and monitoring the policy, and a requirement that all employees attend scheduled educational training programs.
Training Employees to Fight Harassment
Sex-based harassment training should aim to manage how employees react to harassment so that reporting is the norm, so that implicit bias is minimized, and so that reactions to a report that could lead to retaliation are prevented, according to the material from the ABA.
“The manner in which a policy is presented is crucial to its reception and support. Accordingly, the policy should be presented to employees as not just a matter of legal compliance, but as a firm value that should be embraced by all employees,” the handbook says.
It suggests law firms include a training session about sex-based harassment as part of the orientation for new lawyers and other new employees and provide a yearly review of the sex-based harassment policy to all employees. And specific and separate training should be provided for all individuals who are responsible for enforcing the policy, it says.
“These more specific educational programs should include general information about the causes and consequences of sex-based harassment, what the individual should do once he or she receives a complaint, and how the organization will investigate any such complaints,” the handbook says.
Additionally, the law firm should identify simple and inexpensive strategies for identifying harassment in addition to the filing of complaints, such as anonymous employee surveys and exit interviews.
And the policy should become ingrained in the operation and culture of the law firm. One way to do that, according to the handbook, is to make offensive conduct and sensitivity on diversity-related issues a factor in performance evaluation.
Finally, law firms should be proactive in dealing firmly with individuals who have a reputation for engaging in harassment, the manual says.
“The law requires employers to take prompt remedial action to deal with any sex-based harassment of which they have, or should have had, knowledge,” it says. “A firm should not wait for a formal complaint before responding to known misconduct. Inaction may be considered condonation.”
Preventing Damaging Behavior Before It Begins
Citing “female attorneys across the country,” the handbook details ideas for how law firms can work to prevent harassment and bullying.
“Legal employers should think ‘outside the box’ about ways in which they educate their employees, welcome open discussion about harassment and discrimination, identify potential harassment issues early, and create a work environment that treats women and men equally,” it says.
Some of the suggestions include discussing sex-based harassment openly, modeling respectful behaviors through mentorship and leading by example, determine where implicit bias shapes culture, creating early warning systems so that harassment can be addressed early on, and refraining from making excuses for those who behave inappropriately.
According to the ABA handbook, as many as 50 percent of female lawyers report experiencing sexual harassment in their present or previous jobs, and nearly three-quarters of female lawyers believe harassment is a problem in their workplace.
“Reducing instances of harassment and making the legal workplace a more hospitable one for women is a win-win for retaining talented and successful women lawyers,” the handbook says. “It is time for the legal profession to take a hard look at itself, and to adopt a zero tolerance approach to sex-based harassment.”