Workplace harassment is not a new phenomenon, but this issue may finally be getting some of the attention it deserves. Recently, thanks to social media awareness campaigns, such as #MeToo, as well as the courageousness of high-profile and public complainants, sexual harassment in the workplace has garnered the attention of media and businesses alike. Indeed, even Congress is taking action to mandate sexual harassment training for its members; up until now training was optional.
Law firms are no exception when it comes to sexual harassment in the workplace. Like any business, not only must law firms adhere to minimum standards imposed by law to limit legal liability, but they should also consider how to most effectively prevent and respond to sexual harassment. From an organizational perspective, ignoring or not adequately responding to sexual harassment can have negative consequences for the firm, including decreased employee motivation, morale and productivity; increased employee turnover; and, ultimately, an impact on the firm’s bottom line.
Conversely, promoting equality and empathy in your firm can lead to all members of the firm feeling like they have a voice and contributing their ideas more often. While a healthier workplace environment directly impacts employees, it also indirectly impacts clients. Having many different perspectives shared, especially in legal representation, leads to better and more creative solutions for clients.
It’s time you considered or reconsidered your firm’s policies on how to effectively address sexual harassment in your workplace. Raising your firm’s standards in this area will necessarily include, at a minimum:
- drafting comprehensive, understandable and appropriate policies
- communicating those policies
- training all employees (managers and partners included)
- following the policies and procedures when responding to a complaint
- applying appropriate supervision and awareness of employee activities
- creating a culture of listening, inclusiveness and empathy
We will discuss these requirements for a safe and healthy workplace in detail below.
What actions should law firms take?
Massachusetts prohibits sexual harassment in the workplace. See M.G.L. c. 151B. Under Chapter 151B, employers are liable for the conduct of their employees and agents, and that includes sexual harassment. Such liability exists even if the employer does not know an employee or agent is sexually harassing an employee. Furthermore, the employer may have liability even if the employer does not have direct authority over the person who was harassed. For instance, if a senior associate in a law firm is sexually harassing a lower level associate, the partners in a firm may be liable for the illegal conduct.
Here are five steps law firms should take to mitigate the possibility of sexual harassment in the workplace.
1. A Written Sexual Harassment Policy. If you have six or more employees you are required under Massachusetts law to have a written sexual harassment policy. It is good practice for firms of any size to adopt such a policy. Under Chapter 151B, the policy must include:
a. an explicate statement that sexual harassment in the workplace is unlawful and reporting sexual harassment will not be met with retaliatory action;
b. description/examples of sexual harassment;
c. the consequences of committing sexual harassment;
d. the internal procedures for reporting sexual harassment, including the address and phone numbers of where the complaints should be made; and
e. the contact information for state and federal employment discrimination agencies.
2. Conducting Workplace Sexual Harassment Trainings. Workplace trainings are not required under Massachusetts law, but they are encouraged. Be cognizant that these trainings can make people uncomfortable and you may find resistance. It can be helpful to acknowledge that discomfort, while also focusing on the training’s import and demonstrating a serious attitude toward the subject matter. A nonchalant attitude during a training can discourage reporting and have the opposite of the intended effect of the training. Think of this as an opportunity to model openness and assurance that your firm will properly handle complaints. While training is great for new employees, don’t forget to conduct regular trainings for existing employees (managers should not be exempted). For smaller firms, there are trainings that are designed for small businesses and not cost prohibitive. However, be careful not to rely solely on online trainings; engagement, role playing and communication can all help to increase the effectiveness of the trainings.
3. Be Aware of Office Activities. Functioning in the roles of an employer and an attorney simultaneously can be a challenge. Too often the employer role takes a back seat to the attorney role, because managing your workload takes much of your time and efforts. But, if you manage a firm, your substantive work cannot be your sole focus if you want your office to succeed. As an employer, you are responsible for the other people in your office even if you have a solid hierarchy of management below you. Build time into your schedule for internal meetings to have a better understanding of ongoing needs, issues and morale of your office. Even a small firm may need to designate a managing partner who is responsible for ensuring that these meetings occur with regularity.
4. Have an Open-Door Policy. Convey the message to your employees that you’re available and approachable. Having an open-door office policy where employees can reach you for questions or to address issues will foster a positive workplace and encourage communication. If sexual harassment is happening in your workplace, employees who already feel comfortable communicating with their employer are more likely to come forward with such information, which is critical to manage risk and handle difficult situations. Most importantly, open-door policies allow employees to immediately speak up about sexual harassment or other issues. If you are not frequently available onsite, consider workarounds, such as having office hours for employees or assign this role to a managing partner who has the capacity to make this happen.
5. Rapidly Respond to Incidents. If you suspect an incident of sexual harassment, or, if an incident is reported to you, you must respond immediately — no matter how minor or how credible you think the issue is. You must also apply your policy uniformly. One of the best ways you can respond is to conduct an independent and thorough investigation, carefully documenting throughout the investigation.
What should your sexual harassment policy contain?
As outlined above, there are some minimum requirements for materials that should be included in a sexual harassment policy for any business. While a law firm is a business, there are also some unique elements to running a law firm that may require additional information in some of these sections. For example, your policy may dictate that disseminating sexually suggestive images or videos is an example of sexual harassment, but what happens when that sexually suggestive image or video is evidence in a case that one of your employees is working on? You may need special examples of proper conduct or even additional procedures for how to handle sharing that information with other employees in the firm who may also need to view the evidence to properly represent the client.
Even the type of law your firm handles may have an impact on the type of additional information that may be useful for your employees. For example, if your firm primarily handles divorce cases the relevant facts of the case may, in some cases, include information about the sex lives of the parties. Employees will have different levels of comfort in discussing this information, but it may be necessary to represent the client. Including examples specific to your area of representation can help your employees avoid potential violations of the policy. Below is a roadmap to help you draft your own firm’s policy.
Include an Explicit Statement that Sexual Harassment (and Retaliation) is Unlawful and Not Tolerated
The policy should include a clear statement that sexual harassment will not be tolerated in the workplace and is illegal. Don’t bury the lede here; this is the first and foremost message you want your employees to know when reading this policy. You also want to include a clear statement that reporting of sexual harassment will not result in retaliation. Retaliation by employees or management for reporting sexual harassment is one of the primary fears resulting in non-reporting and, thus, your policy must conspicuously prohibit retaliation.
Define Sexual Harassment & Retaliation and Give Some Examples
Now that you have prohibited harassment and retaliation, you need to tell your employees what that means. The policy should include a definition of sexual harassment and retaliation. Chapter 151B provides a starting point for drafting your own definition of sexual harassment, but does not provide a definition of retaliation. You may want to include or expand on the statutory definition. For example, you may want to update the definition of sexual harassment to include a more specific understanding of what “sex” may mean in relation to identification, for example, including gender, gender identity and sexual orientation. For retaliation, a sample definition follows:
The term ‘retaliation’ shall mean any action subjecting one to offensive or objectionable conduct or language because one initiated, participated in or cooperated with a complaint of harassment or discrimination or otherwise refused to comply with a harassing or discriminatory request that would otherwise dissuade the employee from making or supporting the complaint.
Consider also including a bulleted list with examples of retaliation and unique circumstances that might arise because of your particular practice area. Will your cases involve any sexual content? Do you handle cases that might have a harassment component to them? It may be difficult for employees unexperienced with this subject matter to navigate the discussion without feeling uncomfortable. Providing them with examples of appropriate versus inappropriate conduct in these situations can help them to better navigate the matter.
Describe the Duties of Employees and the Consequences of a Violation
Be clear that employees are expected to immediately report violations of the policy regardless of whether they are a) the subject of the harassment, b) a witness to the conduct or c) learned of the conduct after-the-fact. This should be an affirmative obligation on all employees (including managers). While it may be prudent to reserve the rights of the employer to use discretion when issuing warnings, initiating transfers, suspending or terminating, it is also important to provide assurances that, at the least, a minimum corrective action will be taken when a violation is determined to have occurred. This can encourage reporting.
Be thoughtful about whether to include a statement on the consequences of reporting information that the investigation deems to be false or malicious. While false or malicious complaints should be taken seriously, including specific language on false reporting may discourage people from reporting if they fear they may not be deemed credible. On balance, you may want to more broadly defer to the discretion of the employer to handle information that is provided and later determined to be false, encouraging everyone in any stage of an investigation to be truthful at all times.
Describe the Procedures for Reporting
You want to make reporting as easy as possible. Consider including a sample Reporting Form in your policy to make it easy for employees to know what information they should provide. Also, include multiple people (so as to avoid reporting to the alleged violator) to whom reports can be made with their physical addresses, phone numbers, and e-mail addresses. Ideally you will include multiple contacts of different genders, in case there is a hesitation by someone in reporting to one gender or the other. Remember to update your policy when reporting contacts change.
Provide the Contact Information for Discrimination Agencies
The final requirement in Chapter 151B, Section 3A, is that the policy should identify the relevant federal (EEOC) and state (Massachusetts Commission Against Discrimination) employment discrimination enforcement agencies. Make sure you update the policy at least annually, as contact information for these offices can change.
Optional Recommended Inclusions
While Chapter 151B only requires the above list of included information, there are some additional elements that can maximize the effectiveness of your policy. Consider if there are any unique features of your firm that require additional consideration. In addition, two typical inclusions follow:
Preamble - You may want to include some language as to why this policy is important to your firm and what its purpose is both to the firm and employees. If employees perceive that your firm values and takes the policy serious, they may be more willing to report when there is an incident.
Description of the Investigation Process – Simply describing how to make a complaint and the consequences thereof does not provide employees with much understanding of the investigative process. While you may not want to bind yourself to any particular investigative actions, you can generally describe what a complainant might expect during the investigation (i.e., private interview with the reporter, person alleged to have violated the policy and any witnesses). This, again, will help reduce anxiety of employees and encourage those who have been harassed to report.
Length of the Policy
It is possible to include all of the requirements above in a one page policy, but consider whether that gives enough specificity and weight to the importance of these policies. On the other hand, you certainly don’t want a lengthy policy that includes so much information that it is incomprehensible and unlikely that employees will read it. The size of your firm and the length of your employee handbook or other policies may help inform what is appropriate for the length and detail of your firm’s policy.
WRAP-UP AND RESOURCES
The reasons for having a comprehensive sexual harassment policy are numerous, and include not only limiting liability, but also improving the firm’s bottom line by building a positive workplace culture. To get started drafting your own policy and developing procedures, you need not reinvent the wheel. The MCAD provides a sample policy on their website. The Law Office Management Assistance Program (LOMAP) also has sample workplace policies and other human resource materials available at www.masslomap.org/start-up-kit/start-up-kit-operations/staffing.
While these policies and procedures can provide a starting point, your policy should be adapted specifically to your firm and its internal procedures. For further assistance and support, consider engaging an employment law firm and/or human resource consultant that specializes in the area of employee handbooks and workplace trainings.
The ongoing prevalence of sexual harassment in the American workplace is obvious given all the recent news surrounding this issue. If you are listening to this news and reading the experiences that people are sharing as part of the #MeToo movement, you may be wondering what you can do to help. Updating your firm’s sexual harassment policy is a good first step to show that you want this issue to be taken seriously and that you support the belief that this type of conduct should be #NoMore.
Heidi S. Alexander, Esq., is the deputy director of Lawyers Concerned for Lawyers, where she helps manage organization operations and leads the Massachusetts Law Office Management Assistance Program (LOMAP). LOMAP provides free and confidential practice management assistance, guidance in implementing new law office technologies, and methods to attain healthy and sustainable practices. She is the author of Evernote as a Law Practice Tool and serves on the ABA’s TECHSHOW Planning Board. In 2017, Alexander was appointed to the Massachusetts Supreme Judicial Court’s Standing Advisory Committee on Professionalism.
Justin L. Kelsey, Esq., is a collaborative divorce attorney and mediator at Skylark Law & Mediation, PC in Southborough. He is a graduate of Boston University School of Law and Worcester Polytechnic Institute. Kelsey is the current president of the Massachusetts Collaborative Law Council and is also on the board of the Massachusetts Council of Family Mediation. He has been recognized by the Massachusetts Council on Family Mediation as a Certified Mediator. MCFM was the first organization to certify family mediators in Massachusetts and certification is reserved for members of the Massachusetts Council on Family Mediation with significant mediation experience, advanced training and education. He has spoken at MCLE, MCLC, MCFM, MBA, BBA, CDSC, APFM, AFCC and IACP on topics ranging from marketing and social media, to jurisdiction, child support, alimony, collaborative law, and mediation.
Melissa Levine-Piro, Esq., is the founder and manager of Levine-Piro Law, P.C and Affordable Law Group, P.C. She practices in the areas of family law and small business litigation, and serves as a divorce mediator. She is a 2017-2018 fellow of the American Bar Association, Law Practice Division, and sits on MCLE’s Practice Management Curriculum Advisory Committee. Since 2013, Levine-Piro has served as outside counsel and a Mastermind Adviser for the Veteran Business Owners Initiative, which is a program at VA Hospitals in Massachusetts and New Hampshire training veterans to open businesses. She also serves as a selectman for the town of Maynard. Levine-Piro is a member of the Massachusetts Bar Association, Boston Bar Association, Massachusetts Academy of Trial Attorneys, Women’s Bar Association and the Massachusetts Council of Family Law Mediation. She is co-president of the Maynard Business Alliance.