Sexual Harassment Policies for Law Firms
| Publication year | 1992 |
| Pages | 16 |
| Citation | Vol. 5 No. 9 Pg. 16 |
Mary Anne Q. Wood and Wayne W. Williams, J.
INTRODUCTION
The questions raised during the confirmation hearings of Justice Thomas concerning his alleged harassment of a subordinate, Anita Hill, have renewed concerns about sexual harassment in the workplace. These concerns have spawned a plethora of articles in the press and seminars to provide guidance to employers about eliminating sexual harassment in the workplace.
Many law firms are involved in assisting clients in developing and implementing sexual harassment policies. However, the statistics would indicate that law firms themselves are slow in promulgating effective sexual harassment policies. For a variety of reasons law firms may not have implemented effective sexual harassment policies. Firms may believe that sexual harassment is limited to blue collar jobs. However, a survey by the National Law Journal and West Publishing Company revealed that 60% of the 900 female lawyers surveyed reported that they had experienced some form of sexual harassment in the workplace.[1]
Many law firms are too small to be cov ered by the provisions of Title VII and consequently may believe that they are not at risk for sexual harassment claims. However, even law firms that are too small to be covered by the provisions of Title VII may still be liable for sexual harassment if they are a federal contractor or if they practice in a state with a state law which prohibits sexual harassment. In addition, all employers are subject to exposure for potential tort claims such as intentional infliction of emotional distress.
DEFINING SEXUAL HARASSMENT
In 1980, the EEOC first issued guidelines declaring sexual harassment to be a violation of Title VII. According to the EEOC:
Unwelcome sexual advances, requests for sexual favors, and other verbal[2] or physical conduct of a sex-ual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
29CFR§ 1604.11(a) (1991).[3]
The Supreme Court adopted the guidelines' definition of sexual harassment in Meritor Savings Bank v. Vinson, 106 S.Ct. 2399 (1986), and held that a plaintiff may establish a violation of Title VII by "proving that discrimination based on sex has created a hostile or abusive work environment." Id. at 2405.
While adopting the EEOC definitions of sexual harassment, the Supreme Court declined the parties' invitation to issue a definitive rule on when employers are liable for the harassing conduct of their employee supervisors. Id. at 2407-08. The district court had held that the bank was without notice of the supervisor's alleged conduct and consequently could not be held liable for the supervisor's actions. Id. at 2403. The Court of Appeals, on the other hand, concluded that the employer was strictly liable for a hostile environment created by a supervisor's sexual advances, even though the employer did not know of the misconduct. Id.
Rather than adopt either of the lower courts' bright line rules, the Supreme Court agreed with the EEOC that Congress wanted courts to look to agency principles for guidance in this area. Id. at 2408. The Court also concluded that the absence of notice to an employer does not necessarily insulate that employer from liability. Id. Furthermore, the Supreme Court rejected the employer's assertion that the mere existence of a grievance procedure and a general policy against discrimination, coupled with a plaintiffs failure to invoke that procedure insulates the employer from liability. Id. The Supreme Court, however, signaled that employers may be able to insulate themselves from liability if they have effective procedures in place that are calculated to encourage victims of harassment to come forward. Id.
The Supreme Court indicated that the employer's policy in Meritor was insufficient because it did not address sexual harassment in particular and it did not "alert employees to their employer's interest in correcting that form of discrimination." Id. Moreover, the bank's grievance procedure required a complaining employee to first complain to her supervisor. In Meritor, the supervisor was the harassing party. Consequently, it was not surprising that the plaintiff failed to invoke the procedure. Id.
PURPOSE OF A SEXUAL HARASSMENT POLICY
Under the principals enunciated in Meritor, there are three primary reasons why every employer, including all law firms, should implement an effective sexual harassment policy. First, an effective policy...
To continue reading
Request your trial