A new “zero tolerance” manual issued by the American Bar Association, which includes a preface by Cohen Milstein Sellers & Toll of counsel Anita Hill, seeks to provide guidance to the U.S. legal profession in combating sexual harassment in the workplace.
“Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession” is an updated version of a manual first developed by the ABA’s Commission on Women in the Profession in 2007.
This latest version focuses on issues of sexual harassment and bullying within the legal profession and provides more explicit policy advice and guidance for legal industry leaders to follow in order to help eradicate misconduct among their ranks.
“[Zero Tolerance] updates our understanding of workplace abuse and expands it to include non-sexual abusive behavior, such as bullying and protection for individuals who may be targeted because of their sexuality, gender identity, race and ethnicity, alone or in combination,” said the preface by Hill, who has accused U.S. Supreme Court Justice Clarence Thomas of sexual harassment. “The commission’s manual offers ABA members invaluable information that will benefit the profession.”
The new manual outlines sample policies that legal organizations can use in drafting their own policies to prohibit sexual harassment. It also outlines key elements of what a comprehensive policy against sexual harassment should include, as well as guidelines for complaint channels and reporting procedures.
The manual also suggests possible sanctions or disciplinary actions that could be used against a harasser or if there was a retaliatory response taken against the victim of such harassment.
“The legal profession must have zero tolerance of sexual harassment against any person working within our law firms, our justice system or our law schools,” wrote ABA president and Greenberg Traurig co-president Hilarie Bass in the manual’s foreword. “This book provides a roadmap for our profession to move forward to ensure that sexual harassment is something that the next generation of lawyers can describe as a challenge of the past that has been overcome.”
The publication of the updated “zero tolerance” manual comes on the heels of the adoption of a sexual harassment resolution by the House of Delegates at the ABA’s midyear meeting in Vancouver last month, which encouraged all employers in the legal profession to adopt and enforce policies and procedures that “prohibit, prevent, and promptly redress harassment and retaliation.”
“Zero tolerance” is also the latest in a series sexual harassment-related guidelines announced this week.
On Tuesday, a working group within the federal judiciary announced nearly 20 reforms on workplace harassment throughout the U.S. judicial system, including protocols that addressed the matter of judicial confidentiality, an important issue following recent allegations against Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.
The Solicitors Regulation Authority, an independent regulatory body in the U.K., also issued a warning this week to law firms not to use nondisclosure agreements (NDAs) in order to prevent the reporting of sexual misconduct.
“I think the more guidelines the better because there are some gray areas,” said Stroock & Stroock & Lavan of counsel Shira Scheindlin, a former federal judge who rejoined the New York-based firm in 2016. Scheindlin currently co-leads the firm’s new practice unit that helps clients conduct internal investigations into alleged sexual misconduct in the workplace.
With revelations of workplace misconduct continually making headlines, including within the legal profession itself, what is and isn’t appropriate conduct in the workplace is being redefined, Scheindlin said. And guidelines put forth by organizations such as the ABA can remove some ambiguity and try to protect employees, while also ensuring that women aren’t unnecessarily penalized in what Scheindlin dubbed the “boomerang effect,” a process where a man may be afraid of working with a woman out of fear of being accused of some kind of misconduct, which ultimately also adversely affects the advancement of women in the workplace.
“It’s good to have guidelines so that you do know what’s acceptable and what’s not acceptable,” Scheindlin said. “I think the more that’s laid out explicitly, what behavior is OK and what behavior is not OK, the better it is.”