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Top 10 Myths That Will Make You A Defendant While Practicing Law
Introduction
Following the election of Governor Gray Davis and the dominance of Democratic leadership in the California legislature, numerous changes in California laws have occurred over the past three years. Those laws have had a substantial impact on attorneys' sex based conduct, both in reference to their employees, as well as to their clients, and interestingly enough, even to their vendors and contractors. This presentation will identify the numerous legal attempts to control the sex based behaviors of attorneys in California.
Myth # 10: The Harassment Laws Do Not Cover Me
The California Fair Employment & Housing Act (FEHA) is the statute governing discrimination on the basis of sex, as well as the additional categories of race, national origin, ethnicity, color, religion, marital status, age, physical and mental disability, sexual orientation, and medical condition. Govt. Code §12940 et seq. Effective in 1999, the Legislature added genetic characteristics, and in 2000 the Legislature added sexual orientation, both as protected characteristics. Govt. Code §12940(a)
The FEHA subjects law firms (as soon as they hire, or attempt to hire, their first “employee”) to the FEHA's requirements regarding all forms of “harassment.” The press has given most coverage in recent years to harassment based on sex, otherwise known as sexual harassment.
Please note that when you have at least one employee, you are also prohibited from all the other forms of statutorily illegal sex based harassment, such as harassing employees based on (a) pregnancy status, (b) HIV or AIDS status, (c) marital status, (d) sexual orientation. Govt. Code §12940(h).
The most notorious case in recent years, the Weeks v. Baker & McKenzie case, resulted in a $7 million verdict, even though Ms. Weeks was employed for less than 8 weeks, arguably suffered only one sexual battery, and had virtually no wage loss.
In a less distinguished case about 6 years ago, an attorney was disciplined with suspension from the practice of law, when he required all his secretaries to sign written agreements permitting him to engage in sexual conduct towards them, including submission to whatever touching and/or advances he made.
As a final note, persons who file sexual harassment claims generally have pendent tort claims in their lawsuits that include the following: assault (attempting touching), battery (actual non-consensual touching), intentional infliction of emotional distress (using sexual harassment as the outrageous conduct), defamation (implying the plaintiff was sexually promiscuous), misrepresentation (about the safe conditions of employment), and negligence (in hiring and retaining sexually predatory employees).
Myth # 9: Harassment Laws Only Apply to Employees
In 1999, the California legislature broadened the definition of “employer” in the Fair Employment & Housing Act, effective January 2000.
Beginning in 2000, sexual, and other forms of harassment, of “persons providing services pursuant to a contract” is now prohibited. Govt. Code §12940(h)(3)(4). Such harassment is now prohibited in the same manner that sexual, and other forms of harassment, are prohibited against employees.
This means that the Government Code now specifically prohibits all types of harassment against the following categories of persons:
 Clients Independent contractors Consultants Bookkeepers, accountants Vendors, including machine repair, delivery persons, janitorial personnelAs an aside the ABA's Committee on revisions to its Model Rules, voted several months ago to adopt a Model Rule prohibiting all sexual conduct with a client. The ABA anticipates that this rule will become one of the newly revised final ones.
Myth # 8: I Don't Have Any Employees
The California Fair Employment & Housing Act (FEHA) is the California statute governing claims of harassment and discrimination. Most lawyers and small firms are not aware of the fact that the FEHA statute exempts all employers with fewer than five (5) employees during any 20 consecutive weeks of the current or preceding year.
The federal civil rights law governing employment, Title VII of the Civil Rights Act of 1964, exempts all employers with fewer than fifteen (15) employees during any 20 weeks of the current or preceding year.
However, just because most solo practitioners and small firms are exempt from the general discrimination laws, does not mean that such attorneys are exempt from the harassment laws. The harassment laws provide no exemptions for any employers.
Those who are considered “employees” under California law include all the following:
Applicants (potential employees) Law clerks, interns, externs (also potential employees) “Contract” employees (control of work creates employment relationship) Co-employees (from temporary agencies, e.g.) Co-employees paid by, or on the payroll of, another and who work occasionally for me.Myth # 7: I Don't Harass Anyone
Both federal and California law continue to recognize the two broad categories of harassment, i.e., quid pro quo harassment and hostile environment harassment.
The French define the first as a Crime and the second type as Life. In the U.S., both forms may be illegal.
Lawyers should be aware of the basic definition of sexual harassment which has been proffered by both the federal and State authorities:
"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for an employment decision affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.” 29 Code of Fed. Regulations §1604.11
All of the following less severe activities have been found to constitute sexual harassment, when occurring frequently or offensively enough:
Requests for dates Letters, Notes, Photographs, Cartoons, E-mails, Computer Photos Sexual language, jokes, questions about personal life Gestures: Leering, Lip smacking, Hand gestures, staring Blocking, Impeding, Loitering behaviors Touching, grabbing, on non-sexual zones of the body Stalking, telephone calls, leaving messagesIn my own experience, I have known attorneys to have done all the following:
Requesting sexual intercourse from their clients and employees. Raping, including anal rape, of an employee. Demanding employees prepare the law office for sexual trysts during after hours. Demanding employees clean up mattresses, sheets, semen stains. Offering to discount legal services for sexual services. Grabbing and fondling an attorney's buttocks in the hallway of a law office. Playing “footsie” with the attorney's client during a deposition.Myth # 6: I'm OK, Because I Never Intended Any Harm
Both federal and California law continue to recognize that the offensiveness of work place conduct is judged by what is in the mind of the recipient. The motive and intent of the perpetrator are irrelevant.
In addition, all sexual activity is judged by whether the victim found the perpetrator's conduct “welcome,” and not by whether the victim “consented” to the perpetrator's conduct.
In addition all sexual activity is judged both by the egg shell recipient, as well as by others of her type, who would have found themselves in her shoes, knowing what she knew.
Both men and women can be perpetrators, and both men and women can be victims. The manager at Cal Spas who alleged sexual harassment by the female Vice President who forced him repeatedly to have sexual intercourse with her, received a $1.7 million verdict.
Myth # 5: At Least Gay Jokes Are OK, Aren't They?
The FEHA statute, as well as California's Constitution, prohibit discrimination against persons who are gay, lesbian, bisexual, or are males or females via transgender status. Govt. Code §12920. In common parlance writers often refer to this community of individuals as the GLBT community.
Courts have already recorded that juries have found the following comments illegal and discriminatory when made towards and about women based on stereotyped notions about how they should speak and behave in the work place:
She needed to take a “course in charm school” “She may have overcompensated for being a woman” Her use of profanity was “one of the negatives” about her She came across as “macho” She needed “social grace” She should “walk more femininely, wear make_up, have her hair styled, and wear jewelry” She's a “women's libber” Referenced females as “gals” Invited one woman to sit on his “lap” Stated that, “A woman's place is in the home.”One satirist of American life has even created a chart to reflect these sexually stereotyped notions about men and women.
Courts have also found the following comments to be illegal and discriminatory based on sexual orientation:
Referred to the male plaintiff as “she” and “her.” Mocked him the about the way he walked. Taunted the male for carrying his serving tray “like a woman.” Called him a “faggot.” Called him a “fucking female whore.” Derided him for not having had sexual intercourse with a female waitress. Referred to a part of the city as the “fag capitol of San Diego.” Said a waiter “looks like a big fag.” Commented that a sales rep was a “fag” because he wore an earring Derogatorily commented on the man taking a male, not female, guest to the symphony. Refused to shake the plaintiff's hand. Making derogatory comments about “faggots in this company.”See respectively, Nichols v. Azteca Restaurant Enterprises, Inc., ___ F.3d ___ (9th Cir. 2001) 2001 U.S.App. LEXIS 15899 and Kovatch v. California Cas. Mgmt. Co. (1998) 65 Cal.App.4th 1256.
And in a reversal of contexts, the Courts have found that law employers violate and illegally constrain freedom of speech for GLBT employees when the business punishes employees for talking about sexually transmitted diseases, using prophylactics as a defense, and the AIDS epidemic in general.
Shell Oil Company fired Jeffrey Collins for preparing a memorandum at work about safe sex procedures for gay men, and the Court held that his activity constituted a “political activity” in light of the AIDS crisis that existed in the San Francisco area at the time. The Court awarded more than $4 million in compensatory and punitive damages for the discharge. Collins v. Shell Oil Co., 56 Fair Empl. Prac. Cas. (BNA) 440 (1991); 1991 Cal. App. LEXIS 783.
A female attorney in a northern California law firm sued her firm for wrongful discharge, when the firm fired her for making comments about lesbian attorneys openly identifying their own sexual orientation. When the law firm moved for summary judgment, the Court commented that discussing gay rights with other employees, or engaging in activities with the gay and lesbian community outside her law firm, were probably expressions of political view protected under California law. Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227 (N.D. Cal. 1993).
Myth # 4: I'm Not Doing Anything Wrong at Work
The FEHA imposes not simply a burden not to conduct oneself inappropriately. The FEHA also imposes an affirmative burden on conduct in the work place.
Most small law firms currently violate the FEHA by these following failures:
No illegal harassment posted in the office. No written policy against illegal harassment. No procedures for accepting and responding to sexual harassment complaints. No verbal or written notices to employees that the firm objects to illegal harassment.Under the FEHA, every employer must take every reasonable action to prevent sexual harassment from even occurring in the work place in the first place. Govt. Code §12940(i)
Myth # 3: At Least I'm Safe in the Court Room
All attorneys are aware that inappropriate court room conduct may result in financial, evidentiary, or even terminating sanctions.
The Santa Clara County Bar Assn. has expanded the definition of inappropriate court room behavior by insisting that attorneys practicing in this Code adhere to the SCCBA's Code of Conduct while practicing in this County.
In addition, the SCCBA has a complaint procedure permitting attorneys to lodge complaints against courtroom personnel, other counsel, other participants in the court process, when those complaints are based on allegations of harassment and/or discriminatory treatment based on sex, race, sexual orientation, or any of the protected civil rights categories.
Myth # 2: No One Can Accuse Me of Sexism
As noted above, sexual stereotyping comes in all shapes and forms. Each attorney should ask himself, herself the following questions:
Do I refer to an unknown Judge as “he or she” when discussing the Judge with my client? Do I refer to a potential attorney as “he or she” when discussing the attorney with my client? When I tell someone I need to hire a secretary, do I only refer to that secretary as “she?” Am I comfortable with a male receptionist, a male voice answering my office calls? Do I ever call a woman a “gal” or “girl?” Do I hold doors open as often for men as for women? When I hear the phrase, “Medical Doctor,” did I think of a woman?Myth # 1: I'm Safe When I'm Away From Work
In 1999, the California legislature broadened the definition of “employer” in the Civil Code to attach liability to attorneys' behavior outside their offices. Civil Code §§ 51.9, 52; Assembly Bill No. 519.
For attorneys who also function as real estate agents, the law prohibiting harassment applies to them in relationships with their real estate clients.
For attorneys who function as landlords, the law also applies to protect their tenants.
In short, the full breadth of the definition of “sexual harassment” that exists under employment law, now applies to every other professional relationships that attorneys establish in California.
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