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Just as important as having a specific harassment policy is having a complaint procedure that attorneys and non-attorneys alike can to use to remedy actual and perceived wrongs. At a minimum, the complaint procedure must provide an employee with the option to speak with someone other than his or her supervisor, since the supervisor may be the cause of the problem. The Supreme Court made clear that an employer will not be able to meet its affirmative defense — that the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and that the employee unreasonably failed to take advantage of the employer’s preventive and corrective opportunities — if its complaint procedure fails to provide employees with the opportunity to bypass their supervisor. But law firms should do more than the minimum. Providing more choices with respect to whom an employee can complain, makes an employee’s failure to complain less reasonable. Accordingly, it is recommended that there be multiple contacts wherever possible. Because harassment is a form of abuse, some employees may feel comfortable only if they speak with someone of the same (or opposite) sex. As a result it is recommended that, whenever possible, there be gender diversity in terms of the personnel identified to receive any complaints. In smaller law firms, providing multiple contacts is more difficult but not impossible. One option to consider is for two non-competing firms to have their managing partners serve as external points of contact for the other firm. However, the benefit of sharing resources in this way must be balanced against the potential legal risk of sharing liability as well. 5 KEY AREAS FOR TRAINING SUPERVISORS Supervisors are a firm’s eyes and ears. As such, they are the key to prevention and correction so it’s critical that they be trained properly. In a law firm, partners clearly are “supervisors” for harassment prevention purposes, as are non-legal office managers and other department heads. In some cases, senior associates also may be considered supervisors for liability purposes. The legal responsibilities of supervisors in a law firm as defined above can be divided into five categories. 1. Supervisors must refrain from engaging in sexual or any other form of unlawful harassment. Particular attention should be paid to how to handle sexuality where related to a case (e.g., domestic relations). In these circumstances, it is critical that the discussions be confined to the case to which they relate and that the discussions not become unnecessarily explicit or public. In this regard, it is important to note that judges appropriately may expect more from lawyers than other professionals. After all, as officers of the court, they are supposed to set standards for professionalism. Troglodyte attorneys are likely to cause embarrassment to judges and find contempt in juries. 2. All supervisors must receive guidance on how to respond to complaints that are brought to their attention. It is recommended that law firm supervisors be required to report all complaints to a designated partner or non-legal manager, even if the employee asks that nothing be done. If the case is not reported and the employee subsequently files an external claim, the firm may be held liable for not investigating when it was on notice of potential liability. 3. Supervisors must understand their duty to respond proactively to inappropriate behavior that they see or hear, even in the absence of a complaint. “I didn’t do anything” is an admission rather than a defense. 4. Guidelines on how to remedy inappropriate behavior should be given to all law firm supervisors. 5. Supervisors should be instructed about the importance of ensuring that neither they nor the persons whom they supervise engage in prohibited retaliation. Unlawful retaliation can be economic (denial of a raise) or non-economic (bad assignments). Jonathan Segal is a partner with Wolf, Block, Schoor and Solis-Cohen in Philadelphia. Contact him at [email protected] Related Story: Are Small Firms More Vulernable to Harassment Claims?

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