Recent media coverage of the #MeToo movement has brought a heightened awareness of sexual harassment in the workplace, especially in law firms.
News coverage indicates an increase in sexual harassment claims against law firms — both for covering up clients’ histories of sexual harassment and covering up harassment in their own firm. Law firms are particularly vulnerable to these types of claims for several reasons.
First, the practice of law has traditionally been dominated by men, and despite recent efforts, there is still an inequitable distribution of men to women in the field. Additionally, the nature of law practice involves long hours in small teams, often involving only one associate and one partner or one attorney and one paralegal or legal administrative assistant. The mentor-mentee model has an inherent imbalance of power that can be abused or result in misperceptions.
Finally, people who work in law firms — especially associate attorneys — often form close bonds to handle the stress of their jobs and those relationships can be problematic.
According to recent data from the Equal Employment Opportunity Commission (EEOC), charges filed with the EEOC alleging sexual harassment went up by more than 12% in 2018 over the previous year. In addition, there was a 50% increase in the number of lawsuits filed by the EEOC against employers alleging sexual harassment as compared to 2017.
Now is the best time for firms to review internal policies and practices and ensure that attorneys and staff understand the kinds of behavior that can create claims of sexual harassment.
In general, sexual harassment is any conduct of a sexual nature or based on a person’s gender when submission to or rejection of the conduct affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile or offensive work environment.
The Circuit Court covering North Carolina, South Carolina, Maryland, Virginia and West Virginia recently expanded the scope of the kind of conduct that can be considered to form the basis of sexual harassment claims. Historically, courts were hesitant to treat sexual rumors as a form of as a form of discrimination in accordance with Title VII of the Civil Rights Act. However, in February, the U.S. Court of Appeals for the Fourth Circuit held that baseless rumors that a female employee had a sexual relationship with her supervisor could support a sexual harassment claim.
An attorney’s initial reaction to workplace gossip may be to stay out of it. While that approach may have been acceptable in the past, attorneys should be trained to address rumors that an attorney or staff member “slept their way up the corporate ladder” under the firm’s sexual harassment policy.
The female employee’s male coworkers spread a rumor that she slept with her male boss to obtain a promotion. A manager participated in spreading the rumor, discussed it at a staff meeting with other employees and blamed the employee for “bringing the situation into the workplace” when she tried to discuss her concerns about the rumor. He also told the female employee that “he could no longer recommend her for promotions or higher-level tasks because of the rumor.”
The lower court granted the employer’s motion to dismiss and held that the “complaint as to the establishment and circulation of this rumor is not based upon her gender, but rather based upon her alleged conduct.” The Fourth Circuit reversed the lower court’s opinion and held that the complaint “plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as ‘sluts’ or worse, prostitutes selling their bodies for gain.”
Considering this expanded view of what constitutes sexual harassment and the recent climate surrounding these types of claims, it is important that law firms conduct regular training and keep an ongoing open dialogue with their attorneys and staff about sexual harassment.
Typical online antiharassment training is often ineffective. Sexual harassment training should be live and interactive whenever feasible and should be tailored to the firm. In addition, it should identify behaviors that are unacceptable in the workplace and communicate a clear complaint procedure. It is most effective to train partners, associates and staff separately, so that those in a supervisory role can learn to identify and address sexual harassment. Separate training also fosters a more open discussion about specific behaviors that may be occurring in the workplace.
And, because of that Fourth Circuit decision, law firms should specifically discuss how to deal with sexual rumors in the workplace. It can be part of new sexual harassment training or an update to an annual program.
An attorney’s initial reaction to workplace gossip may be to stay out of it and avoid getting involved in conversations about coworkers’ personal lives. While that approach may have been acceptable in the past, attorneys should be trained to address rumors that an attorney or staff member “slept their way up the corporate ladder” under the firm’s sexual harassment policy. That means reporting rumors to human resources and taking affirmative steps to prevent them from spreading. Once they become aware of a sexual rumor, human resources should immediately investigate to identify the source and scope of the rumor and discipline the individuals involved.