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Sexual Harassment Defense for Lawyers

Sexual harassment has been around probably since the beginning of time, and it is only recently that laws have defined what actually constitutes the act. In California, sexual harassment is any unwanted touching or sex-related conduct. As an attorney, you are not immune to accusations of sexual harassment.

Although the MeToo movement has given a voice to many people who have been too afraid to speak out about sexual misconduct in the past, it has also led to some risks and many misunderstandings. It is more important than ever for any person - especially those in positions of power - to be extremely careful in their interactions with other people and to know what to do in the event of a sexual harassment claim.

Sexual harassment has taken center stage in the media of late, and many people agree that they don't know any woman who has not experienced sexual harassment or assault of some kind in their lives. However, women are not the only victims of sexual harassment. Men and women alike can be both victims and perpetrators, and sexual harassment can occur between two men or two women.

While guilty parties should be punished to the full extent of the law, one should remember that some claims are unsubstantiated at best, and false at worst. Lawyers are viewed as pillars of the community, and clients or employees may use sexual harassment accusations as a means to discredit you. If you are a lawyer who is accused of sexual harassment, it is a good idea to retain a specialist Sexual Harassment Attorney who regularly handle these kinds of cases to defend you and protect your rights.

Your Sexual Harassment Attorney has unique skills and resources, as well as specialist training to help develop an effective defense strategy. Resist the urge to defend yourself, and rather make use of this specific skill set to handle the accusations lodged against you.

Lawyer Accused of Sexual Harassment

No industry seems to be able to escape sexual harassment or sexual assault claims. As a lawyer accused of sexual harassment by a client or colleague, the stakes are about as high as they can get. As someone who is upheld as a respected member of the community, a sexual harassment complaint and investigation can derail more than just your career; it also places your reputation and family life in serious jeopardy.

As a lawyer, many of your words and actions can be taken out of context. Quid pro quo is the most obvious form of sexual harassment in the workplace. This type of sexual misconduct typically involves a promise of work-related benefits or a threat of negative work decisions in exchange for sexual favors. However, there are many other types of harassment, including pornography on office phones or computers, inappropriate jokes, unwanted touching and other sexually suggestive verbal or physical actions.

Accusations should not be left undefended, as it can have more devastating effects than quick, effective action, including:

  • identifying the source,
  • preserving evidence,
  • and developing a legal strategy.

Knowing who the accuser is will be the first step to finding an effective defense strategy. You should also know how many people are making similar accusations. Finding out these sources and the scope of your accusation is best done by professional investigators working for a specialist defense lawyer. Every aspect of the investigation must be confidential.

Your specialist attorney will help direct the best possible evidence collection and preserve it with the help of forensic investigators. While most of the evidence your accuser has will be historical, much evidence is created in real time. Beware that anything you say or do can become part of the evidence.

Your legal strategy will depend on the source of the allegations. Accusations brought by the prosecution and the police, the crime will probably be considered sexual assault, whereas an HR investigation will typically be workplace sexual harassment. However, the police can also investigate sexual harassment, likely when the source of the accusation is a current or former client of your law firm, or even an intern, job applicant, or other third party related to your firm.

Attorneys specializing in sexual harassment focus on the FEHA and Civil Rights Act of 1964, which protect individuals from gender discrimination. These laws prohibit unwanted sexual advances and physical touch. Prosecutors can advise clients on how to put harassment to a halt, while sexual harassment defense attorneys can help handle cases in which people have been accused of sexual harassment, particularly in the workplace. Law offices may sometimes be implicated in sexual harassment cases.

A defense attorney will use collected evidence to show that the plaintiff has either consented or welcomed the advances.

Sexual Harassment and the Law

The rules of professional conduct forbid lawyers from having sex with clients. The purpose of this law is to prevent emotions that encircle intimate relationships from clouding your independent professional judgment. Likewise, the rule helps protect clients from being taken advantage of due to the unequal balance of power that exists in lawyer-client relationships. California law defines sexual relationships as intercourse, or the touching of an intimate part of the other person's body for the purpose of sexual gratification, arousal or abuse.

In the past, attorney-client sex was only banned if it was based on coercion, quid pro quo, sex in exchange for legal services, and other abuses of power. However, the Supreme Court of California approved a complete ban on all types of attorney-client sex - including consensual sex - as from November 2018. The only exception to this rule is if the sexual relationship preceded the attorney-client relationship, or if the client happens to be your domestic partner or spouse. This was one of the seventy amended or new rules that the State Bar recommended, of which sixty-nine were approved. 

The State Bar, which is the legal licensing body in California, investigates complaints of sexual harassment against lawyers. The Office of Chief Trial Counsel conducts these investigations. After completion of the investigation, if the State Bar finds the charges to be justified, they will discuss the complaint with you and try to find a resolution.

In the absence of a settlement, a hearing will be scheduled in the State Bar Court in order to review charges. A judge will determine will then determine the most appropriate discipline, which could include a suspension or even disbarment. Finally, the California Supreme Court will review the proposed discipline. 

Depending on the seriousness of the accusations, it is possible that the State Bar will refer the case to the District Attorney's Offices for investigations and possibly prosecution

Lawyers & Sexual Harassment in the Workplace

A form of workplace discrimination, sexual harassment in the legal practice is prohibited by California state and US federal law. Employers or coworkers may not cause an employee to work in an offensive environment or to engage in offensive conduct that creates an intimidating or hostile work environment.

Victims should understand that not every simple slight, silly joke, or minor annoyance qualifies as sexual harassment. Inappropriate sexual conduct becomes illegal when it causes the workplace to become so hostile that it becomes impossible for a reasonable person to tolerate.

As the owner of a law firm, you are responsible for taking the appropriate measures to ensure that you provide a workplace that is free from harassment. You could be held liable for the behavior of your employees, or the way in which your clients behave towards your employees. You can protect your business by proactively implementing a complaints and grievance process for employees and providing sexual harassment training.

The law also protects employees who voice their feelings regarding workplace conduct from retaliation and negative work-related decisions made by their employers. Employees are encouraged to verbalize their displeasure and report their complaints early on.

Sexual harassment in the workplace can be subtle, yet highly discriminating. It does not always come from a place of sexual desire, but rather a means to exert power over the victim. Coworkers or employees tend to be singled out by supervisors or employers and mistreated because of their gender of sexual orientation; this is prohibited by FEHA.

Sexual harassment takes many different forms, ranging from subtle to violent, and it may range from being denied promotions and equal pay to offensive language with sexual connotations to unwanted sexual advances. Some examples of unlawful sexual harassment in the law practice include:

  • inappropriate texts or emails
  • jokes, comments, slurs, name-calling and other verbal harassment based on a person's gender
  • lewd conversations of a sexual nature
  • promises of work benefits in exchange for sexual favors
  • threats of demotion or other negative work outcomes for refusal to agree to sexual advances
  • sexually provocative images or text posted in common areas
  • sexually explicit videos, pictures or materials posted in employees' work areas
  • repeated requests for dates
  • unwanted flirting
  • unwanted or inappropriate touching
  • sexual assault

Once again, an isolated incident will not be considered sexual harassment, unless it is severe. Typically, the court looks at the pervasiveness of an incident. Repeated incidents of the above actions will usually be considered a viable case for sexual harassment.

Even employees who are not direct targets of sexual harassment may have a claim if the behavior results in a hostile environment. They may also take legal action even if they did not suffer financial injuries because of the sexual harassment. Being found liable for sexual assault can result in the suspension or revocation of your state bar license. 

Defenses for Lawyers Accused of Sexual Harassment

Several defenses are available to lawyers who are accused of sexual harassment in their personal professional capacity, rather than workplace harassment suits filed against the practice. The standard innocence defense that is available to other charges also applies to this case. Admitting that you did in fact engage in the conduct with consent of the alleged victim is another option. You could also claim mental incapacity or insanity, but that may have various unwanted outcomes.

Naturally, you will need an alibi to argue that you were elsewhere when the alleged sexual harassment occurred. This could include travel receipts, credit card bills, witness corroborations, and other forms of evidence.

Alternatively, as a defendant in a sexual harassment case, you could admit to the behavior, but use the consent of the victim to negate the charges against you. It can however be difficult or even impossible to prove consent.

How to Deal with Sexual Harassment Accusations as a Lawyer

Oftentimes, a breakup in a consensual relationship can lead to sexual harassment claims. Honesty is usually the best policy. It is better to admit an affair that was in breach of firm policy than to be disbarred for sexual harassment.

Perhaps you made a joke that was taken out of context by a highly sensitive employee. Be sure to apologize, even if you did nothing wrong. Sexual harassment victims must bring administrative claims and exhaust all remedies available through the Equal Employment Opportunity Commission (EEOC) and Department of Fair Employment and Housing (DFEH) before they can pursue civil suits under California law. Your attorney can guide you through the best responses to each of these complaints.

If you know - or should reasonably have known - about the harassment of an employee or client by another employee of the company, an independent contractor, or a customer, but failed to take immediate corrective action, your firm may be liable under Government Code section 12940(h)(1).

As expert Sexual Harassment Attorneys, we have experience on both sides of the coin. We have handled legitimate cases on behalf of victims of sexual misconduct, and we have defended our peers against false accusations. Let us help fight the good fight on your behalf. 

If a client or employee accuses you of inappropriate conduct, deal with it appropriately before the accusations can derail your career. Sexual Harassment Attorney employs a diverse team of experts to handle your matters with utmost care and confidentiality. Call 800-905-1856 today to schedule a case assessment with a dedicated sexual harassment attorney.

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