ABA Adopts Disputed Antidiscrimination Rule: The Law Finally Catches Up To Businesses It Represents

A new ethics rule by the American Bar Association (A.B.A.) sounds more like a satirical headline than a legitimate news article: “The [A.B.A.] says it is professional misconduct to discriminate against or harass opposing counsel, or anyone else for that matter, in the course of practicing law,” writes The New York Times and not, surprisingly, the Onion.

“It is time for the A.B.A. to catch up,” Myles Lynk, chair of the A.B.A.’s ethics committee, said during debate over the rule Monday (via the WSJ Law Blog).

The “new” ethics rule now prevents comments or actions that single out a person based on race, religion, sex, disability or other factors (duh!). Although almost two dozen U.S. State bars, including the District of Columbia, have already enacted such a rule, there was never a national ban on such behavior.

Without a strict rule prohibiting demeaning and misogynist behavior or parlance, it has been easy for opposing counsel or others in the legal profession to use it as an intimidation tactic with zero to no consequences.

“I got the pat on the head,” Jenny Waters, chief executive of the National Association of Women Lawyers, explained to The New York Times earlier this month, discussing a memorable incident while working in private practice (via the Huffington Post). Other attorneys also spoke of receiving “grating” remarks or being victims of demeaning actions, such as having an arm draped around their shoulders.

Shocking as it may seem, the rule has been controversial, igniting debate in the legal industry for months. Some claim the rule limits a lawyer’s personal freedom to practice law as he sees fit. But, to most, the rule was long overdue—now limiting hackneyed “honeys” and “darlings” to courtroom dramas, rather than courtrooms.

“I think it’s absolutely shameless that as lawyers we’re not the model for how businesses should run,” New York lawyer Wendi Lazar told the Wall Street Journal a few months earlier.

Nevertheless, opponents of the rule were able to dampen the language of the original text; in the end, the rule only applies where “the lawyer knows or reasonably should know [behavior] is harassment or discrimination,” which is a demonstratively weaker version than the original, reports the WSJ Law Blog.

Luckily, the rule still spells out what constitutes sexual harassment and which settings are included in this when it comes to practicing law. For example, settings include the courtroom, as well as “interacting with witnesses, co-workers, court personnel, lawyers and others” and “managing a law practice or law firm” or “participating in bar association, business or social activities in connection with the practice of law.”

On that, there seems to be no debate.

“Half my students are women. A quarter are students of color,” legal ethics expert Stephen Gillers, of New York University School of Law, told the Wall Street Journal (via the Huffington Post).

“The ABA has looked to them like an organization of old white guys. This vote will help.”

Let’s hope so. It’s about time.

-WB

Is The Law At Odds With Women In The Workplace? How Women Can Become Better Bosses

Some days it’s hard to be a woman and appreciate the law.

Let’s take a recent incident in Iowa, for example.

For an entire decade a man enjoyed the hard work of his female subordinate. Ten years the two worked side-by-side in a dental office without incident. But, following a midlife crisis, failure in his own marriage, or some other unprovoked change of heart, the boss suddenly finds his assistant too attractive to be around. He promptly fires her.

“Dr. Knight said I couldn’t work in the office, because he was becoming attracted to me, and not able to focus on his family, and his family life… I instantly broke down in tears. All I remember is just sitting there, and not able to get up, telling him that I love my job,” explains Melissa Nelson in an interview with “20/20” correspondent Paula Faris, reports ABC News.

A lawsuit was filed on the grounds of wrongful termination due to gender.

Dr. James Knight, the dentist in question, doesn’t agree with Nelson’s claims. Although he doesn’t deny the sexual advances through text message or other incidents, his attorney told ABC News: “… she was not terminated because of her gender, but to preserve the best interest of his marriage.”

Sadly, the Iowa Supreme Court agreed with Knight. The most sympathy they could utter was that Nelson’s one month’s severance pay was “ungenerous” but his actions, legal.

This outcome is less surprising when we consider the justices, David, Daryl, Brent, Bruce, Edward, Thomas, and Chief Justice Mark. More than their verdict, there’s another commonality among these lawmakers—they’re all men.

See, it’s hard to keep track of the whims of men these days.

For every dollar men earn, women still earn just 77 cents. Nonetheless, the majority of Congress is unconcerned.

The Senate was six votes shy of passing the Paycheck Fairness Act this year. Why? Republicans argued that discrimination based on gender is already illegal, and feel their hands are tied to do anything more. If those laws worked for women like Nelson, then that would be true.

What’s sad is that these unjust cases of discrimination or sexual harassment are not new.

Bloomberg Businessweek admitted that an unpaid intern that is not legally considered an employee, and thus cannot sue for sexual harassment in the workplace:

“This discrepancy’s not new: Unpaid interns aren’t covered by Title VII of the 1964 Civil Rights Act, and while local laws can protect them, New York’s state and city laws do not.” In many states, it seems the law does not favor female subordinate employees. But, life’s even harder on female bosses.

Only 4.6 percent of public companies have female CEOs.

“The United States, once a world leader in gender equality, now lags behind other similarly wealthy nations in women’s economic participation. In the two decades from 1990 to 2010, our country fell from having the sixth-highest rate of female labor-force participation among 22 Organisation for Economic Co-operation and Development, or OECD, countries to 17th on the list,” writes Michelle Patterson, Founder and President of The California Women’s Conference and President and CEO of Women Network.

An astounding 46 percent of Russia’s leadership roles are held by women, 24 percent in Europe, and 31 percent in Turkey. These numbers are significantly higher than North America’s mere 18 percent, according to Career Bright’s article on the marginalization of professional women.

On a list of 200 companies with a workforce of over 1,000 employees, a survey by Glassdoor found only 2 companies with female bosses ranked high on employee approval of CEOs. Forbes, who reported on the survey, asks pertinently: “Do We Hate Female Bosses?”

Well, do we?

Some blame confidence. Men are just more confident in leadership roles.

If that’s true, it’s not at all surprising why—given all the legal cards stacked against a women: Don’t look too attractive, don’t look too ugly, don’t be “bossy” or “bitchy” yet still command your subordinates with authority…

How could any woman balance such a heavy double standard?

If there’s one thing a woman in the workplace can do to be taken seriously, it’s speak up—more often and more assertively. Like this blog post. Like today at work.

Are you too nice, too modest or way too quiet when it comes to saying and getting what you want in the workplace? Do you assume the blame when things go wrong? And what about when things go right? Do you credit other people, good luck or circumstances for your success?

You’re not alone. In fact, a recent survey found that half of women managers admitted to feelings of self-doubt about their performance and career, but only 31 percent of men reported the same.

Condescending colleagues, gender bias, and stereotypes can make it hard for women to take credit when it’s due, or steer the company ship with confidence. But a woman’s actions, assertiveness and communication skills—or lack thereof—could also be sabotaging her career.

So, take The Center For Competitive Management’s audio course Friday, July 11, 2014 from 11AM to 12:15pm EST: The Smart Woman’s Guide to Confident, Assertive Leadership.

While it will likely take more time to convince lawmakers that effort and work ethic, not the sexual desires and whims of men, should take priority in the workplace, it doesn’t take much for a woman to ask for promotions, initiate salary negotiations, speak up at meetings, manage subordinates productively and successful manager, and master guiltless self-promotion with gusto.

-WB

Obama Gives Unemployed Workers New Ability To Sue Potential Employers For Discrimination

On Monday, President Obama presented the American Jobs Act to Congress. Buried among the bill‘s language was a clause that makes it illegal for employers to discriminate against unemployed workers during the hiring process.

The section in question, “Prohibition of Discrimination in Employment on the Basis of an Individual’s Status as Unemployed,” not only makes it illegal for employers to publish advertisements saying they won’t consider applicants who are unemployed, but it also makes it illegal for employers to request that employment agencies take into account a person’s unemployed status.

This is in addition to existing standards that already forbid employers to ask about age, marital status, and religion during job interviews.

For lawyers, the most interesting part of this proposed legislation is the fact that the bill allows wronged workers to seek damages if they believe they have been discriminated against.

Rep. Louie Gohmert (R-Texas) pointed out that Obama’s proposal helps the unemployed and also creates a new stream of litigants among America’s working class.

“So if you’re unemployed, and you go to apply for a job and you’re not hired for that job, see a lawyer,” Gohmert said on the House floor. “You might be able to file a claim because you got discriminated against because you’re unemployed.” (via The Hill)

Gohmert expressed his concerns about the bill, claiming the hiring provision would discourage companies from interviewing unemployed candidates. Instead, Gohmert believes the provision will “help trial lawyers who are not having enough work.”

“That’s 14 million potential new clients that could go hire a lawyer and file a claim because they didn’t get hired even though they were unemployed,” said Gohmert, considering the 14 million Americans who are currently out of work.

For lawyers, the bill is, indeed, good news.

Unfortunately, companies who say they will not consider unemployed candidates may face a penalty of up to $1,000 per day or “reasonable attorney’s fees.” For some this fine could accumulate to as much as $5,000.

And, if the aim of the bill is job creation, it looks like that may backfire.

“How many businesses will offer new positions in this kind of regulatory and legal climate? Only those who absolutely cannot afford to not hire, and the inevitable costs of fighting the claims that arise will ensure that they won’t have the cash to do any hiring for a while afterward,” writes Ed Morrissey on Hot Air.

Employers must worry about working hours and behavior even after the hiring process. The proposed bill would also create a program allowing workers to be reimbursed if their employer cuts their work hours by ten percent.

But with the myriad implications of the language in this bill, at least lawyers won’t have to worry about that…

-WB

Has The Definition Of Disability Gone Too Far?

Discrimination is a stigmatized word, and most workplaces would prefer to sweep the entire topic under the rug. However, just like those awkward conversations at Sex Ed class in your preteen years, certain facts of life should be addressed—and the sooner the better. Whether based on gender, sexual orientation, race, or medical condition, discrimination in hiring practices or office behavior is commonplace. It only takes a quick look at the numbers published by the U.S. Equal Employment Opportunity Commission (EEOC) to see that workplace discrimination is rampant nationwide. Whether representing a claimant in such a suit or victim to one, law firms should be aware of a few legal developments in the area of employee discrimination.

Discrimination complaints have risen to a record high. For the 2010 fiscal year, the EEOC handled 99,922 workplace discrimination charges. Through various enforcement, mediation, and litigation programs, the EEOC recovered roughly $404 million as a result of these suits. Although racial discrimination continues to make up the vanguard of discrimination complaints filed with the EEOC, retaliation charges were actually number one in 2010, with 36,258 claims filed.[1] In light of this week’s changes to the definition of employee disability, however, it won’t take long for disability discrimination, currently at 25,165 claims, to take the lead. As of March 24, more employees qualified for disability benefits. The EEOC announced the final bipartisan regulations for the ADA Amendments Act, which broadens the scope of people who qualify for disability accommodation. HIV infection, diabetes, epilepsy, and bipolar disorder are among the additions to the definition. As such, “More disability lawsuits can be expected to be filed, and importantly, those lawsuits will become much harder to defend against at an early pleading stage,” according to Seyfarth attorney Condon McGlothlen.[2]

Even though these changes are recent, the Supreme Court is already facing momentous cases regarding discrimination and retaliation suits. For example, the Supreme Court will soon decide whether a Lutheran elementary school can be sued for retaliation by a narcoleptic teacher who was fired soon after returning from her disability leave. The controversy in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission surrounds the application of “ministerial exception”.[3] But, of equal note is the fact that narcolepsy, a sleep disorder, is considered a disability. It begs the question, how far must employers go to accommodate illness, medical conditions, or social disorders in their employees? Is a narcoleptic person—characterized by excessive drowsiness and daytime sleep attacks—an appropriate choice for a teacher responsible for the safety of students aged 10-14 years?

Only the Supreme Court can answer those questions. However, there are steps your firm can take to eschew retaliation and discrimination suits.

1. Conduct employee training on discrimination and rights to disability accommodation. Ensure employees are accountable for attending training and reading and following your firm’s policy manual. The policy manual should contain procedures for discrimination avoidance and discrimination complaints.
2. Keep up-to-date on the law. The law on discrimination and disability is fluid. As such, be sure your policy reflects these changes and send firm-wide updates on related legal developments.
3. Good lawyers keep accurate and immediate records. Although lawyers are often trained to be weary of keeping written records of certain matters, discrimination is not one of them. Both employees who experience and employers who receive reports of discrimination based on gender, race, or disability should document all occurrences.    

The definition of disability will change over time. But when it comes to discrimination, the best policy is always the same—one of zero tolerance.

[1]http://www.employmentlawfirms.com/legal-advice/employment/discrimination/most-common-charges-filed.htm

[2]http://blogs.wsj.com/law/2011/03/25/whos-disabled-feds-expand-the-definition/

[3]http://www.abajournal.com/news/article/supreme_court_to_decide_whether_lutheran_school_teacher_can_sue_for_retalia/

Three Associate Trainings A Firm Shouldn’t Skip

Continuing Legal Education, or CLE, ensures that lawyers admitted to any state bar maintain certain standards of professional and ethical conduct. In the same way lawyers must practice due diligence for a case, so attorneys should be held accountable for their competency and behavior over time. But CLEs are not enough to ensure new associates are fully prepared for the practice of law. The following list contains three trainings that firms should require for first hires.  

1. Discrimination              

The Supreme Court verdict for the Wal-Mart v. Dukes case will certainly change future sex discrimination litigation. But for now, policies on discrimination at the workplace should be made clear to firm employees. However your HR chooses to conduct this training—manuals, videos, podcasts, or in-person—all employees should participate. In the end, the training will either help spare your firm from sex discrimination class-action suits, or, in the least, help inspire your associates in their defense of similar suits for your clients.  

2. Electronic Discovery Software                                    

Electronic discovery is no longer a novel tool for law firms. It’s a necessary one. Some of the best vendors include Attenex, Clearwell, FTI, Guidance, LexisNexis, and Oracle, but law school students would likely not recognize these names.  Law firms do not teach this software, which should generally be chosen by firms according to their practice area and specific needs. Typically, e-discovery software is used by paralegals and legal assistants (other than doc review). However, there’s nothing more inefficient than a partner who is incapable of making a single photocopy (or his own word processing edits). In the same way, all associates should understand the interworkings of case management and e-discovery software so that at trial, in the last hour, there are no surprises.

3. Client Relationship Management          

It’s easy to let equity partners handle all communication with the client. However, associates and of-counsel are essentially partners in-training. As such, they should be comfortable managing client relationships. This means practicing proper email and phone etiquette, providing frequent status updates to the client, and tracking all communication. If a client does not trust every member of their trial team, it’s unlikely they will solicit future services from the firm. Client relationship management should be formalized into a training given by a partner or older associate to further emphasize its importance. Training takes thirty minutes to an hour, but a satisfied client stays (and pays) for life.