Wednesday, February 7, 2018

What is your profession doing to combat harassment? Mine appears to doing a lot, as ABA adopts new anti-harassment policy

The policy-making body of the American Bar Association has adopted a formal resolution that urges legal employers to prohibit, prevent, and promptly redress sexual harassment and retaliation claims.

Moreover, to make sure that law-firm leaders are paying close enough attention, Resolution 302 [pdf] also urges that firms adopt measures to ensure that the heads of law firms are informed of the financial settlements of such claims.

The resolution contains the following key measures:

  • Inclusion of “gender,” “gender identity,” and “sexual orientation” in the definition of “sex.”

  • Encouragement all employers to disseminate a clear statement that all harassment, including harassment based on sex, will not be tolerated.

  • Confirmation that the harassment policy applies to conduct by anyone at work, or at or in connection with any work related function.

  • Creation of regular and effective training programs. 

  • Provision of alternative methods for reporting violations of the policy, including at least one anonymous method.

  • Communication, at the start of employment, of the process to report harassment to a government agency.

  • Investigation of all complaints in a prompt, competent, fair, thorough, and objective manner, to include a report to the complainant at the end of the investigation.

  • Implementation of corrective actions to prevent and correct unlawful harassment or retaliation in the workplace, to include the restoration of lost wages or bonuses to the complainant, and disciplinary action up to and including termination of the accused.

  • Prohibition of retaliation against complainants and witnesses.

I quibble with some of these. For example, I typically do not think it’s a good idea to provide the investigatory report as part of the closure of the investigation. I also do not include the EEOC’s phone number and URL in harassment policies I draft.

Broadly speaking, however, I’m proud that my profession is doing something positive to shift the narrative from, “#MeToo I’ve been harassed,” to “#MeToo I’m doing something about it.”

So ask yourself, what are you doing? Are you part of the harassment solution, or part of the harassment problem?