TABLE OF CONTENTS
A. Statement of Firm Philosophy
B. Definition of Sexual Harassment
C. Individuals Covered By the Policy
D. How to Report a Complaint
E. How To Investigate the Formal Complaint
F. How To Resolve the Complaint
G. Appeals Process
H. Maintaining a Written Record of the Complaint
For the past several years, both public awareness of inappropriate behavior and substantial court awards have resulted in an increase in sexual harassment complaints filed by either direct victims or persons working in a hostile work environment. Sexual harassment occurs frequently in office situations- and law offices are no exceptions. Serious professionalism questions may be raised when sexual harassment and other forms of discrimination are shown to exist.
Sexual harassment is a form of discrimination on the basis of gender. Sexual harassment violates federal civil rights statutes, as well as various state and local statutes. The principal federal statute, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. Sections 2000e, et seq., 2000e-2(a)(1),applies to firms with 15 or more employees (not including partners in a true partnership). State statutes or local ordinances may apply to small firms.
If your firm is not subject to any statute or ordinance, issuing a policy may give your employees more contractual rights than they otherwise would have. Even if the statutes do not currently cover your situation, there are additional factors for you to consider when deciding whether to implement a policy against sexual harassment:
A. Even if your firm is not subject to statutory law, an employee claiming sexual harassment in the terms and conditions of employment may have valid tort claims, including assault and battery, wrongful discharge or intentional infliction of emotional distress. Adoption of a policy accompanied with training should be helpful in avoiding the conduct which could give rise to a tort claim.
B. Disciplinary Rule 1-102B does address the possibility of sexual harassment, together with other discriminatory conduct in an attorney's dealings with clients and employees, rising to the level of unethical conduct. If so, sanctions would be a possibility.
C. An employer which permits either a hostile work environment to exist, or treats employees more or less favorably for reasons relating to actual sexual relationships, will adversely affect both the morale and the productivity of the workplace.
A firm should weigh all of these factors when deciding whether to adopt a policy and educate firm members and staff about the problems of sexual harassment.
Generally, sexual harassment takes one of two forms: (1) quid pro quo or (2) hostile environment. In quid pro quo sexual harassment, the terms and conditions of employment are expressly linked to the employee's engaging in sexual conduct. In hostile environment harassment, repeated unwanted sexual gestures, jokes, overtures, touching and the like create a hostile work environment for one or more employees. It is not only the "harasser" who can be held responsible. The doctrine of respondeat superior may be applicable. In a small firm setting, it would be more difficult to establish that sexual harassment occurred without the managing lawyers' awareness.
The sample policy which follows has been carefully drafted, but should not be adopted thoughtlessly. What works for a large firm may not work for a small firm. For example, the requirement of a "committee" investigation or the provision concerning an alternative person to whom a situation may be reported should be based upon your firm’s structure. Confidentiality can also be a concern from both the accuser’s and the accused’s points of view. What works for another firm of your identical size may not work for yours. In a partnership form of business one partner’s knowledge of certain conduct may be imputed to other partners. You must tailor the policy to fit the firm. Further, the adoption of a policy should not be your final step. Education of firm members and employees along with integration of the policy with your existing procedures on maintenance of personnel files and their confidences are also important. Finally, we want you to know that there are qualified mediators available, for a fee, to mediate sexual harassment claims.
The Sample Policy is not intended to establish a minimum standard of care, nor does it represent a legal defense to any claims of sexual harassment. The Sample policy should not be considered either the practice of law or providing legal advice. This document is intended to make practitioners aware of the issues and to suggest ways to handle some issues without litigation. Be advised that the law can change at any time.
A. STATEMENT OF FIRM PHILOSOPHY
(FIRM NAME) is committed to maintaining a professional and collegial work environment in which all individuals are treated with respect and dignity. Each individual has the right to work in a professional atmosphere which promotes equal opportunities and prohibits discriminatory practices, including sexual harassment. At (FIRM NAME), sexual harassment, whether verbal, physical or arising out of the work assignments out of the office, at office sponsored social functions, or elsewhere, is unacceptable and will not be tolerated. It is also illegal.
B. DEFINITION OF SEXUAL HARASSMENT
For purposes of this policy, sexual harassment is defined as unwelcome and unwanted sexual advances, requests for sexual favors, and other verbal, non-verbal or physical conduct of a sexual nature when: (1) submission to or rejection of this conduct by an individual is used explicitly or implicitly as a factor in decisions affecting hiring, evaluation, promotion or other aspects of employment; or (2) this conduct substantially interferes with an individual's employment or creates an intimidating, hostile or offensive work environment.
Examples of sexual harassment include, but are not limited to, unwanted sexual advances; demands for sexual favors in exchange for favorable treatment or continued employment; repeated sexual jokes, flirtations, advances or propositions; verbal abuse of a sexual nature; graphic, verbal commentary about an individuals body, sexual prowess or sexual deficiencies; leering; whistling; touching; pinching; assault; coerced sexual acts; suggestive insulting, obscene comments or gestures; and display in the work place of sexual suggestive objects or pictures.
This behavior is unacceptable in the work place itself and by any owner, partner or employee in any business related setting outside the workplace, including but not limited to other work-related settings such as business trips, court appearances and business-related social events.
(The Firm may also want to consider placing a "fraternization" warning here which would state: Consenting romantic and sexual relationships between members and/or employees of the firm are not expressly forbidden, but such relationships are considered very unwise because factors such as real or perceived power of one person over another within the firm may override claims of consent at a later date.)
C. INDIVIDUALS COVERED BY THE POLICY
This policy covers all employees (associates, paralegal, support staff) and partners. (FIRM NAME) will not tolerate sexual harassment, whether engaged in by fellow employees, supervisors, associates, or partners; or by other non-employees who conduct business with this firm. In addition, the firm will not tolerate sexual harassment engaged in by an individual who is not a partner or an employee of the firm (e.g., client, opposing counsel, court personnel, supplier) to the extent that it affects any partner or employee of the firm. Any partner or employee who has been subject to sexual harassment by such a person may complain to (THE FIRM'S APPOINTED COMMITTEE OR ANY MEMBER THEREOF). [If a "committee" is not practical for the firm, an individual from within or without the Firm could be designated. Similar changes in the sample policy would be necessary to accommodate the needs of the firm] The firm will investigate any incident of alleged sexual harassment by a person who is not a partner or any employee of the firm to the extent practical and will take any action it deems appropriate after evaluating all the circumstances. In particular with respect to clients, the firm will take any action necessary to stop the conduct and, if not stopped, the firm will terminate its relationship with the client, if appropriate. The firm encourages reporting of all incidents of sexual harassment, regardless of who the offender may be, in accordance with the method set out in Section D below.
D. HOW TO REPORT A COMPLAINT
1. Informal Procedure
(FIRM NAME) encourages individuals who believe they are being harassed to clearly and promptly notify the offender that his or her behavior is unwelcome. If for any reason an individual does not wish to approach the offender directly or if such discussion does not successfully end the harassment, then the individual should notify a member of (THE FIRM'S APPOINTED COMMITTEE) [as described below] who may talk to the alleged harasser or arrange for mediation between the individual and the alleged harasser with a third person acceptable to both. This informal procedure is not a required first step for the reporting individual.
2. Formal Procedure.
In the event that the reporting individual does not wish to pursue the informal procedure, or in the event that the informal procedure does not produce a result satisfactory to the reporting individual, the following steps should be followed to report the sexual harassment complaint and to initiate a formal procedure:
a. Notification of a Member of the Staff.
An individual who believes he or she has been subject to sexual harassment should report the incident to any member of (THE FIRM'S APPOINTED COMMITTEE). The current members of the committee are (list names). [The firm should designate more than one individual within the firm to receive complaints. To the extent feasible, these individuals should reflect the diversity of the firm, in gender, as well as age and seniority].
An individual also has the option of reporting the harassment to the individual's supervisor. In such a case the supervisor must immediately file a written report of the complaint and its resolution
with a member of (THE FIRM'S APPOINTED COMMITTEE).
Any investigation should be confidential to insure the privacy of the persons involved. Both the accuser and accused individuals should be reminded of the confidential nature of the process.
b. Description of Misconduct
An accurate record of objectionable behavior is necessary to resolve a formal complaint of sexual harassment.
All complaints of sexual harassment must be reduced to writing by either the reporting individual or the individual(s) designated to receive complaints.
c. Time for Reporting a Complaint
Prompt reporting of complaints is strongly encouraged, as it allows for rapid response and resolution of objectionable behavior or conditions for the reporting individual and any other affected employees.
This firm has chosen not to impose a limited time frame for the reporting of sexual harassment complaints. However, the reporting individual should be aware that applicable statutes of limitations do constrain the time for instituting outside legal action.
d. Protection Against Retaliation
This firm will not retaliate against an individual who makes a report of sexual harassment, nor permit any partner or employee to do so. Retaliation is a very serious violation of this policy and should be reported immediately. Any individual found to have retaliated against an individual for reporting sexual harassment, or against anyone participating in the investigation of a complaint, will be subject to appropriate disciplinary procedures as described below. (See "How to Resolve the Complaint").
E. HOW TO INVESTIGATE THE FORMAL COMPLAINT
Any allegation of sexual harassment brought to the attention of (THE FIRM'S APPOINTED COMMITTEE) will be promptly investigated. Confidentiality will be maintained throughout the investigatory process to the extent practical and appropriate under the circumstances.
2. Identification of Investigators
Complaints will be initially investigated by the person on (THE FIRM'S APPOINTED COMMITTEE) to whom it was reported, unless the committee determines another person should be the investigator.
3. Investigation Process
The investigation process may include any or all of the following:
* Confirm name and position of the reporting individual.
* Identify the alleged harasser.
* Thoroughly ascertain all facts in connection with the alleged incident, beginning by interviewing the reporting individual and the alleged harasser. Questions of all parties should be asked in a non judgmental manner.
* Determine frequency/type of alleged harassment and, if possible, the dates and locations where alleged harassment occurred.
* Find out if any witness observed the alleged harassment. If the reporting individual and the alleged harasser present conflicting versions of the facts, interview any witnesses.
* Ask how the reporting individual responded to the alleged harassment and determine what efforts, if any, at informal resolution of the matter were made.
* Determine whether the reporting individual consulted anyone else about the alleged harassment and take note of who else knows and their response to the disclosure.
* Develop a thorough understanding of the professional relationship, degree of control and amount of interaction between the alleged harasser and reporting individual.
* Determine whether the reporting individual knows of or suspects that there are other individuals who have been harassed by the alleged harasser.
* Determine whether the reporting individual informed other partners or supervisors of the situation and what response, if any, reporting individual received from these individuals.
* During the first interview with the alleged harasser, remind the alleged harasser of the firm's policy against retaliation for making a complaint of sexual harassment.
In pursuing the investigation, the investigator will try to take the wishes of the reporting individual into consideration, but should thoroughly investigate the matter, keeping both parties informed as to the status of the investigation.
F. HOW TO RESOLVE THE COMPLAINT
Upon completing the investigation, the investigator will report to (THE FIRM'S APPOINTED COMMITTEE). (THE FIRM'S APPOINTED COMMITTEE) will review the investigation, make findings and decide upon appropriate action to be taken. (THE FIRM'S APPOINTED COMMITTEE) will communicate its findings and intended actions to the reporting individual and alleged harasser.
If (THE FIRM'S APPOINTED COMMITTEE) finds that harassment occurred, the harasser will be subject to appropriate disciplinary procedures, as listed below.
1. Sanctions for Harassment
Individuals found to have engaged in misconduct constituting sexual harassment shall be disciplined. Appropriate sanctions will be determined by (SELECT THE APPROPRIATE INDIVIDUAL OR GROUP OF INDIVIDUALS). In addressing incidents of sexual harassment, the firm's response at a minimum will include reprimanding the offender and preparing a written record. Additional action may include: referral to counseling, withholding of a promotion, reassignment, temporary suspension without pay, reduction in allocation, discharge or removal or expulsion from the firm.
2. False Accusations
If an investigation results in a finding that the reporting individual falsely and maliciously accused another of sexual harassment, the reporting individual will be subject to appropriate sanctions, as described above, including the possibility of termination.
G. APPEALS PROCESS
If either party directly involved in a sexual harassment investigation is dissatisfied with the outcome or resolution, that individual has the right to appeal the decision. The dissatisfied party should submit written comments in a timely manner to (SELECT THE APPROPRIATE REVIEWERS; INDIVIDUAL OR GROUP; E.G. MANAGING PARTNER, ETC.).
The (APPEALS COMMITTEE) will review the objecting party's position and the entire record before it and present its findings within _____ calendar days of receiving the written objection.
H. MAINTAINING A WRITTEN RECORD OF THE COMPLAINT
(FIRM NAME) shall maintain a complete written record of each complaint and how it was investigated and resolved. Written records shall be maintained in a confidential manner to the extent practical and appropriate in the office of (NAME THE APPROPRIATE INDIVIDUAL OR APPROPRIATE DIVISION WITHIN THE OFFICE.) [The keeper of the records may vary depending on who filed the complaint - associate, partner, paralegal, administrative assistant, etc.]
I. MEDIATION (OPTIONAL)
As an alternative for those wishing to resolve disputes among themselves without resorting to this policy, we will, if all parties agree, make available a trained outside mediator to help you find an amicable, informal solution. If mediation does not solve the problem, you may still use the procedures in this policy.
(FIRM NAME) has developed this policy to ensure that all of its employees and partners can work in an environment free from sexual harassment. This policy will be immediately disseminated to all partners and employees and the firm will provide this policy to all new employees or partners upon their arrival at the firm. (THE FIRM'S APPOINTED COMMITTEE) will conduct informational sessions concerning the policy, so as to ensure that all employees and partners understand the firm's commitment to eliminating any sexual harassment in the work place, are familiar with the policy and know that any complaint received will be investigated and appropriately resolved.
Publication of the Ohio State Bar Association