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Friday, Nov. 10, 2000

Recently, a male law firm partner's unusual interest in a female associate's body and clothing cost him $50,000, as a result of her successful sexual harassment lawsuit. He should have known better. What's more, the law firm's failure to prevent and correct such harassment was a mistake that cost the firm $200,000. Given the relatively settled nature of sexual harassment law today, the law firm really should have known better. But it turns out the firm was not unusual in its failure to take the steps that might have limited, or even eliminated, future sex harassment and liability.

Lisa Sier filed suit against her former employer, Jacobs Persinger & Parker, under New York and local laws prohibiting sex discrimination, including sexual harassment, in employment. She won, both at trial and on appeal.

Lisa Sier's situation had all the ingredients for a successful lawsuit. The conduct involved was run-of-the-mill sexual harassment that virtually any judge or jury would find to be wrongful. The offending partner made sexually suggestive comments about Sier's body and clothing, stared at her chest, and made repeated sexual overtures that eventually, according to her testimony, escalated to some physical contact — a hand on her knee, a kiss, and even a grab between her legs. He described their relationship as "playful" and "flirtatious"; she described it as "predatory" and "harassing."

Sier complained within a week of the physical contact and was eventually terminated (apparently for reasons unrelated to the harassment). When she was fired, the harassing partner said, "Lisa, don't worry about your situation, you can take care of me, and I'll take care of you."

The partner's conduct is certainly disappointing, to say the least. What is also disappointing is that despite the Supreme Court's endorsement of holding employers liable for workplace harassment many years before this conduct occurred, Sier's law firm had no policy against harassment and no formal procedure for reporting it.

How did this happen?

The Problem of Sexual Harassment in Law Firms

Sexual harassment suits against law firms are not uncommon. Indeed, one of the most highly publicized sexual harassment cases was against one of the largest law firms in the world. In that case, a jury awarded a legal secretary more than 6 million dollars based on the conduct of a law firm partner (a longstanding harasser, as it turned out) who reached into her breast pocket to retrieve some M&M candies he had dropped there.

Why are there so many harassment suits against law firms? Some might argue the reason is that firms have a litigious group of employees — who either are themselves trained in law or, at a minimum, have easy access to lawyers and legal advice. More likely, the reason is that there is a significant and persistent problem of sexual harassment within the firms.

A 1990 survey by the American Bar Association reported that two-thirds of women in private legal practice (as opposed to only half in corporate or public settings) had experienced or observed sexual harassment. A 1993 survey by the National Law Journal revealed that more than half of the female lawyers said they had been harassed at some point in their careers, and seventy percent thought harassment was a problem in their workplaces.

Sexual harassment takes one of two forms: quid pro quo or hostile environment. A law firm may, like any other employer, be held liable for either type of harassment.

Quid pro quo harassment occurs when a person with supervisory authority takes a tangible employment action (such as demotion or firing) against a subordinate employee who refuses to submit to sexual advances. Since the court held Sier was fired for reasons other than the harassment she endured, she could not bring this type of claim. In contrast, hostile environment harassment — the type that Sier demonstrated in her lawsuit — occurs when an employee is subjected to unwelcome conduct of a sexual nature so severe or so pervasive as to create an objectively hostile, abusive, or offensive working environment.

Two important recent Supreme Court decisions clarified the rules on employer liability for workplace harassment. Employers are automatically liable for harassment by a "supervisor" — including, for example, a partner who supervises associates. Moreover, while employers have no special defenses to quid pro quo harassment claims, they can establish a special, two-part affirmative defense to hostile environment claims.

The first prong of that defense requires the employer to show that it took reasonable care to prevent and correct harassment. To satisfy the second prong, the employer must show that the victim unreasonably failed to complain or otherwise to avoid harm caused by the harassment.

There are obvious steps a firm can take to try to increase the likelihood of being able to establish this affirmative defense. For example, the firm can provide anti-harassment training to all employees that includes teaching supervisors to watch for and report harassment; carefully screen new supervisors to avoid hiring known harassers; and monitor e-mail and employee workspaces for sexually explicit materials. It can also stop harassment, prevent its reoccurrence, and discipline harassers soon after misconduct is reported.

Enacting a formal, written anti-harassment policy is essential; without such a policy, an employer (unless it falls within a limited small-business exception) is automatically liable for all supervisory harassment. It is also necessary to create a user-friendly internal grievance procedure — one that is calculated to encourage victims of harassment to file complaints, and that provides multiple reporting options, to avoid forcing a victim to choose between reporting the harassment to the harassing supervisor himself, and not reporting it at all. The procedure should also include a mechanism for preventing or minimizing retaliation against those who utilize it. And the firm's anti-harassment policy and grievance procedure should be so well known, easy-to-use, and capable of producing just results that it would be unreasonable for any victim to bypass the internal process and head straight to the EEOC.

Since the Law is Clear, Why Don't Firms Comply?

Even if a law firm does set up these procedures, it still will not be able to establish the affirmative defense if the victim promptly avails herself of the internal procedure and complains. But setting up these procedures can still sharply decrease a firm's expectation of future harassment and future lawsuits.

Maybe it's just that law firms cannot believe they could ever lose a court battle with an employee. Many law firms, including the one Sier sued, even choose to represent themselves when lawsuits do arise. But as the age-old maxim cautions, the lawyer (or law firm) who represents himself has a fool for a client.

Or perhaps it's firms' lack of self-awareness about the kinds of things that go on day to day in their offices. Or maybe it's a misplaced trust that the professionals who work in a law firm will behave more prudently than employees in other contexts.

Whatever the problem, there is no longer any excuse. Any law firm that does not take the steps outlined here to prevent and correct workplace harassment risks devastating consequences. And rightly so.

Joanna L. Grossman, a FindLaw columnist, is an associate professor of law at Hofstra Law School.

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