Model Policy — Prohibiting Sexual Harassment

Preamble

Respect for the dignity and worth of each individual is a basic tenet of _____________________ [name of institution]. Each individual has the right to work in an environment conducive to equal opportunity and free from discriminatory practices. For this reason sexual harassment is not tolerated by this firm [organization, office]. Sexual harassment in any context is reprehensible; but it is a matter of particular concern to the legal community which should be in the forefront of the implementation of justice and equality. As an employer and as a member of the legal community, [name of institution] is committed to eradicating sexual harassment.

Policy Prohibiting Sexual Harassment

A. Sexual Harassment Prohibited
Sexual harassment is unacceptable conduct and will not be tolerated. All attorneys and other employees are responsible for ensuring that the workplace is free from all forms of sexual harassment. Sexual harassment in the workplace is also a form of employment discrimination and is prohibited by law.

B. Sexual Harassment Defined

1. Basic Definition

For purposes of this policy, the term sexual harassment refers to any unwelcome sexual attention, sexual advances, requests for sexual favors and other verbal, visual or physical conduct of a sexual nature when:

(a) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or

(b) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

(c) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance; or

(d) such conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment.

2. Examples

Examples of sexual harassment include, but are not limited to, threatening adverse employment actions if sexual favors are not granted; promising preferential treatment in return for sexual favors; unwanted and unnecessary physical contact; excessively offensive remarks, including unwelcome comments about appearance, obscene jokes or other inappropriate use of sexually explicit or offensive language; the display in the workplace of sexually suggestive objects or pictures: and unwelcome sexual advances by clients or other visitors to the firm when such advances are condoned, either explicitly or implicitly, by the firm.

An intimidating, hostile or offensive working environment may be created by the existence of such circumstances as those described in the preceding paragraph or other circumstances creating a sexually discriminatory working environment.

C. Persons Covered

This policy prohibits sexual harassment of all attorneys and other employees and all applicants for employment.

D. Enforcement of the Policy
The firm will appoint a policy adviser to answer questions and disseminate information about the policy, investigate complaints and take appropriate corrective acton. Any person who feels that he or she has been a victim of sexual harassment shall bring the problem to the immediate attention of the policy adviser. If the complainant is uncomfortable for any reason with discussing such matters with the individual designated as policy adviser, or, in the alternative, if the complainant is not satisfied after bringing the matter to the attention of this individual, that complainant shall report the matter promptly to the Managing Partner or a member of the Executive Committee.

The firm will investigate all allegations of sexual harassment in as prompt and confidential a manner as possible and will take appropriate corrective action when warranted. Any attomey or employee who is determined, as a result of such an investigation, to have engaged In sexual harassment in violation of this policy will be subject to appropriate disciplinary action, up to and including termination of employment or removal from the partnership.

Retaliation in any form against a complainant who exercises his or her right to make a complaint under this policy is strictly prohibited, and will itself be cause for appropriate disciplinary action.

E. Information on Policy
The policy adviser will periodically disseminate information about sexual harassment and this policy with such frequency and in such a form as to ensure that all attorneys and employees are aware of the various forms that sexual harassment can take, the firm's strong disapproval of sexual harassment in any form and the procedures that are available to enforce the policy.


Comments

1. Need for Sexual Harassment Policy

A productive professional environment cannot exist in the presence of sexual harassment. A professionally responsible firm must take measures to prevent and eliminate such conduct.

The first step is to adopt a policy prohibiting sexual harassment. The second step is to publicize the contents of the policy and the employer's commitment to enforcing the policy. Some attorneys and employees may not know that certain behavior is offensive to others or be aware of the strong commitment by the employer. One survey of Philadelphia lawyers indicated that a significant percentage were not aware that their employers had sexual harassment policies. Knowledge of the employer's commitment should provide a strong deterrent and, when sexual harassment does occur, will encourage those who have been victims to seek corrective action.

2. Title VII of the Civil Rights Act of 1964

Sexual harassment is prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. An employer is liable for sexual harassment by its agents and employees in certain circumstances. This is so especially where an employer has actual or constructive knowledge of the sexual harassment but fail[s] to take remedial action. Fields v. Horizon House, No. 86-4343 (E.D. Pa. Dec. 9, 1987).

The definition of sexual harassment in this policy is based on the definition contained in the Equal Employment Opportunity Commission's Guidelines on Discrimination Because of Sex, codified at 29 C.F.R. § 1604.11 (1987).

Small law firms and possibly some relationships within larger legal organizations may not be covered by Title VII. Sexual harassment should nevertheless be prohibited by those firms and in those situations because it is inappropriate conduct under the professional and moral standards expected of the legal profession.

3. Application of Title VII in Law Firms and Legal Organizations

Title VII is applicable to lawyers, law firms and legal organizations. For example, in Hishon v. King and Spalding, 487 U.S. 69 (1984), the United States Supreme Court held that a Title VII sex discrimination claim brought by an associate attorney against a law partnership was cognizabie. Although Hishon was not a sexual harassment case, it established the availability of Title VII claims against law firms, at least by associates.

In Broderick v. Ruder, 685 F. Supp. 1269 (D.D.C. 1988) an attorney at the Securities and Exchange Commission succeeded in holding the SEC liable for sexual harassment by its lawyers because the agency was the employer of, and had authority over, the personnel who persisted in this activity of which it had actual, as well as constructive, knowledge. It took no action. It [was] therefore liable under agency principles for the acts of these high-ranking subordinates.

4. Types of Sexual Harassment

Two types of sexual harassment have been identified under Title VII: quid pro quo harassment and hostile environment harassment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986).

Quid pro quo harassment exists where submission to unwelcome sexual conduct is either explicitly or implicitly made a condition of an individual's employment or the terms of that employment.

Hostile environment harassment exists where the working environment is intimidating, abusive or offensive because of pervasive sexual harassment. Meritor Savings Bank v. Vinson, 477 U.S. at 66-67. In such a situation a person who has not himself or herself been the object of sexual harassment may legimately bring a claim if he or she were forced to work in such a hostile atmosphere. Broderick v. SEC, supra.

This policy prohibits both types of sexual harassment. Some examples of conduct constituting sexual harassment are set forth in Section B, paragraph 2.

5. Beneficial Effect of Sexual Harassment Policy

A policy prohibiting sexual harassment is wise as a legal matter in addition to the positive effect it will have on professional morale. Employers with an effective sexual harassment policy are more likely to prevail even if employees sue on the grounds of sexual harassment. For example, in Swentek v. USAir, 830 F. 2d 552 (4th Cir. 1987), an airline was not liable for a pilot's alleged sexual harassment of a flight attendant in part because the airline investigated the attendant's charges, issued a warning to the pilot, informed him that another complaint would result in his suspension and monitored the pilot's conduct for improvement. Similarly in Fields v. Horizon House, No. 86-4343 (S.D. Pa. Dec. 9. 1987), an employer who took immediate action in response to complaints of sexual harassment was not held liable even though its supervisory employee was found to have engaged in sexual harasssnent. The United States Supreme Court in Meritor also suggested that the employer's defense in that case would be substantially stronger if its [grievance] procedures were better calculated to encourage victims of harassment to come forward. 477 U.S. at 73.