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Lawsuits, #MeToo, summer associates prompt firms to rethink harassment policies

Apr 16, 2019 / News Item / Daily Journal — Erin Lee

In the #MeToo era and with several major law firms facing related litigation, firms are looking at improving training and policies around gender discrimination and harassment, from summer associates to partners, according to legal observers.

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An Orrick Herrington & Sutcliffe LLP spokesperson said last spring the firm “updated and modernized our workplace respect policy to provide more clear guidance to our team regarding the types of behavior that are not acceptable and how to respond if they experience or observe that behavior.” All employees attended mandatory training on the policy, and senior leadership received additional training.

Orrick and several other firms also announced last year they would stop requiring employees, including summer associates, to sign mandatory arbitration agreements for employment-related claims.

Last March, public outcry, particularly from law students, emerged when a Harvard Law lecturer leaked a Munger Tolles & Olsen LLP proposed arbitration agreement for incoming summer associates.

In response, Munger Tolles announced it would no longer require such agreements for employees, and several other firms followed suit, including Skadden Arps Slate Meagher & Flom LLP and Affiliates, Kirkland & Ellis LLP, Sidley Austin LLP and McDermott Will & Emery. None responded to requests for comment.

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Summer associates are in an especially vulnerable position as young, short-term employees trying to get full-time offers from the firm, said Outten & Golden LLP employment lawyer Wendi S. Lazar. “There’s incredible pressure on those law students to not complain, to do what they’re told,” she said. “They should be particularly protected and given guidance on how and when to raise an issue if they’re made uncomfortable by a partner or associate or experience inappropriate behavior.”

Lazar said she’s heard anecdotally of firms actively taking another look at their policies and discussing how to implement effective training because they are worried about litigation and exposure. Lazar was formerly a commissioner on the American Bar Association’s Commission on Women in the Profession and chairs its harassment and bullying committee.

“There’s certainly a completely new focus on how professionals should behave in the workplace,” she said. “My view from the top is #MeToo is definitely changing the dialogue and forcing firms to take action.”

The ABA introduced Model Rule 8.4(g) in 2016, which explicitly prohibits lawyers from engaging in harassment or discrimination in conduct related to the practice of law, the first uniform guiding standard on these issues. The rule is non-binding, but California is one of several states that has adopted it. Other states rejected the rule, saying it’s overly broad.

Though regular harassment training has been standard practice for most firms, new state legislation implemented last year expanded the requirement. SB 1343 required all businesses with five or more employees to provide sexual harassment training to all workers every two years, and SB 396 expanded training to include gender identity and sexual orientation.

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