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Sexual Harassment & the Legal Industry

By John Hellerman
April 01, 2018

While sexual harassment is not generally categorized as a “crime,” when it moves from suggestive remarks to things such as unwanted touching, the civil offense of sexual harassment can quickly become the crimes of assault, forcible touching, sexual battery or even rape. An employee's criminal liability for such acts has traditionally not been imputed to the business organization for which he works, but that does not mean it could not happen as some states have laws on the books that impose criminal liability on business organizations when a criminal offense is “engaged in … by a high managerial agent acting within the scope of his employment and in behalf of the corporation” (NY Penal Law §20.20). With such laws on the books, business entities would be well advised to implement and enforce sexual misconduct policies that protect their employees, thereby protecting the business itself from potential criminal, as well as civil, liability.

For members of a conservative industry that — literally — wrote the rulebook on sexual harassment, law firms need to be ready for a day of reckoning that seems inescapable. Right now, the focus is on Hollywood, mass media, Wall Street, Silicon Valley and politics, which are all professional arenas historically known to operate by their own set of rules that have been at equal turns brushed off as socially acceptable, emboldened after career-ending threats kept censure at bay, and vigorously defended in a courtroom. But the very shaky reality is that the lawyer standing beside every Kevin Spacey, Matt Lauer, Harold Ford, Jr., Travis Kalanick or Al Franken is most likely operating from his or her own “house of cards.”

The sad fact is that no industry has ever been immune from sexual harassment issues. For legal professionals, the industry rumor mill suggests an accuser typically doesn't survive an accusation when the accused is a rainmaker. More commonly, the accuser is offered a settlement in exchange for signing a non-disclosure agreement and leaving quietly or, in some cases, decides to suffer in silence when faced with choices that for personal or professional reasons might prove debilitating.

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