Law Firms Get New Guidance on Sex Harassment

Law firms should draft policies with clear definitions of sex harassment that spell out forbidden behaviors, the American Bar Association recommends in an updated manual for legal industry leaders.

Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession” is the third edition of a book first published by the ABA Commission on Women in the Profession in 2007.

The new version prefaced by Anita Hill, a university professor best known for accusing then-Supreme Court nominee Clarence Thomas of sexual harassment in 1991, has been in the works for two years.

Its release comes amid a renewed national focus on workplace sexual misconduct following a steady stream of harassment allegations against top figures in media, entertainment, and politics. Alex Kozinski resigned his seat on the U.S. Court of Appeals for the Ninth Circuit over allegations made by several women, including former clerks.

“I think the paradigm has changed somewhat,” said ABA President Hilarie Bass. “For many years, the focus was on, ‘is this really a problem?’ I think we’ve now progressed to the recognition that, even if I’m not aware of it, chances are it is going on in my law firm, and what can I do to make sure everyone knows this is really unacceptable.”

The guidebook provides “much more specific” policy advice than previous versions. It he book includes sample policies for prohibiting sexual harassment and disciplining offenders, as well as guidelines on how to develop and enforce new policies.

For example, the guide recommends that firms draft policies with clear definitions of sexual harassment that spell out specific behaviors. These could include asking questions about sexual orientation , and making verbal comments about attractiveness.

Firms should give employees multiple options to report sexual harassment, in case they are reluctant to use one of them, the ABA recommends.

Given the timing, Bass said she hopes the guidelines will find a broad audience in the profession.

“Many people believe, even today, that a report of a harassment claim by a female lawyer can be career-ending,” Bass, who is also co-president of Greenberg Traurig, told Big Law Business. “Until law firms reflect their willingness to take harsh action against the perpetrators, this is going to continue to be an issue.”

Bass, who took over as ABA president last summer, has made it a priority in her tenure to address the gender imbalances that still plague the legal industry.

She’s currently overseeing an ABA investigation into why so many women leave the legal industry around the age of 50, when they are theoretically in the high point of their careers. The results of that study should be ready to share this summer, Bass said.

Bass also spearheaded a new sexual harassment policy that was passed by the ABA House of Delegates in February.

The resolution calls on all legal employers to adopt sexual harassment policies that include anonymous lines for complaints, punishment for perpetrators, and anti-retaliation measures. It also encourages legal organizations to make senior leadership aware of sexual harassment claims.

“What the ABA really is attempting to do is, through educational efforts, podcasts, and the publication of this book, to help people understand that not only does this continue to be a real issue in the legal profession, but what needs to be done to ensure it doesn’t occur,” said Bass.

Separately, a group formed to investigate workplace misconduct in the judicial branch will likely issue a report on its findings in May. It has identified a number of initiatives to address workplace conduct.

This includes establishing an online mailbox and several other avenues and opportunities for current and former judiciary employees to comment on policies and procedures for protecting and reporting workplace misconduct.

U.S. Supreme Court Chief Justice John G. Roberts announced creation of the group in the wake of the Kozinski allegations.

With assistance from Melissa Heelan Stanzione

To contact the reporter on this story: Stephanie Russell-Kraft at srussellkraft@gmail.com.

To contact the editor on this story: Casey Sullivan at csullivan@bloomberglaw.com and John Crawley at jcrawley@bloomberglaw.com.