Question: One of our attorneys continuously makes inappropriate remarks to the staff. He thinks the remarks are funny. The staff don’t complain, but what’s said is obviously inappropriate. Everyone likes the lawyer, and the other lawyers want to keep him on staff. They have counselled with him, but he continues. What should we do?
Answer: No office can afford to turn a blind eye to sexual harassment, because all an employee—or client or vendor—has to do is get a lawyer or complain to the Equal Employment Opportunity Commission (EEOC), and the office is mired in legal hassles, legal fees, and possibly heavy fines. That can happen even if nobody ever complains about the attorney’s behavior.
All anybody has to do is show that management knew or should have known that harassment was going on. And in this situation, the fact that the manager and attorneys have discussed the issue is proof enough that harassment exists, that management is aware of it, and that management isn’t doing anything to stop it. What the attorney sees as kidding around loses its humor when someone resigns and all of a sudden there’s a letter from a human rights attorney. Even worse, in some states a manager can be personally sued for doing nothing.
But what is there to investigate?
The law requires that any complaint of harassment be investigated and stopped. But the perplexing point here is how to investigate when there’s been no complaint. Treat it as a general complaint. Talk privately with the staffers who regularly come into contact with the attorney and say “I’m just checking into this.” To ensure they don’t color their responses out of fear of losing their jobs, add “please answer honestly.” Really pursue the matter. Ask “has it made you feel uncomfortable?” and “would you prefer he not act that way?” Document everything—who is interviewed, what questions are asked, and what each person says. Suppose the answer is “yes he does that, but it’s no big deal.” Write that down. It may afford the office some protection later on, because harassment is not illegal unless it is unwelcomed or creates a hostile work environment. Then write a report to the file that the office investigated the situation and that no one was uncomfortable and that the behavior was not unwelcomed and did not create a hostile work environment.
Don’t start feeling too safe
But no matter how okay the current staff are with the attorney’s behavior, the office still has to stop it. Harassment extends to vendors, visitors, and clients. So even if staff aren’t offended, those other people might be, and they too can file charges of harassment. Or a new staffer could come in, find the harassment offensive, and file suit. And if that happens, the case is all but decided, because the office obviously knew the harassment was going on and didn’t do anything about it.
Here is an example. An attorney was sexually harassing his secretary to the point of dropping M&M candies down her blouse. The secretary complained to the human resources department, but the attorney was a big rainmaker for the firm, so nothing was ever done. The secretary left, and a temporary came in for 45 days. During that time, the attorney kept up the lewd behavior—including the stunt with the M&Ms. The temp sued and won several million dollars in punitive damages because the firm knew about the harassment and did nothing. For her, it was a profitable 45-day assignment.
Talk to the attorney
For their own safety, the partners must stop the behavior. They need to tell the attorney to clean up his act or else, even to the extent of “if you cannot stop this behavior, we must disengage you from the group.” However, any action has to comply with whatever partnership or contractual terms the practice operates under, so the attorneys need to talk with their attorney before making any move. Don’t close the book on the issue. Remember that million-dollar temp. There may be no suit brewing now, but if the harassment continues, one will crop up.
Look too at cultural differences
Consider also four other harassment questions that often arise in offices.
- Can cultural differences of communication be considered harassment?
Yes. Harassment can occur when someone makes remarks that are acceptable in one culture but not in the office setting. One example is strong expressions of endearment such as hugging or kissing that among some people are not only accepted but expected. In an office setting, that can be considered harassment. The same is true for nicknames used respectfully in one language but not in another.
There’s no freedom of speech at work. People are required to follow behavior that is appropriate for the office. No matter how innocent or sincere behavior of that type may be, if it’s not acceptable in the office, it can be harassment. It doesn’t matter that the harasser had no bad intentions; if the victim had good reason to see the behavior as harassment, the office can get sued.
- What if a staffer complains of harassment, the office investigates, and it turns out that no harassment has taken place?
Tell the staffer exactly what has happened. And put it in writing: “We have investigated and could not find evidence of harassment.” But add to that a note that the staffer should let the office know of any other harassment concerns that arise later and also of any evidence of retaliation for making the complaint.
- What if a matter gets resolved but the harasser later goes back to his old ways?
The response depends on the situation. If it’s a minor infraction such as an inappropriate photograph or calendar on the wall, that could possibly be solved by removing the picture. But if it’s a matter of dropping more M&Ms down somebody’s blouse, termination is probably in order.
- Should the offender stay in the office while an investigation is going on?
Again, it depends on the situation. If there’s concern the accused will intimidate the people being interviewed, it’s a good idea to put the individual on leave of absence—with or without pay. Or the office might opt to conduct the investigation without telling the accused. In that case, a good approach is “I have not talked with Attorney A yet, but I want to find out if there’s any validity to a complaint.” Other times it’s best to talk with the accused before investigating. And in that case, the office may or may not opt to say who has complained.