This guidance sheds fresh light on how state enforcers are thinking about sexual harassment and employer responsibilities. New York employers beware - while not a statute, the guidance signals a clear and continued shift towards employees. To emphasize the new model, the guidance provides a host of concrete examples to guide employees, companies, and courts alike in deciding when conduct crosses the line into harassment. However, whether or not the judges will adopt the same expansive views as the agencies have, remains to be seen.

Here’s what you need to know:

The Model Policy Reflects the Law’s Lowered Bar for Wrongdoing

Back in 2019, lawmakers drastically upended the standard for what constitutes sexual harassment by removing the long-standard “severe and pervasive” requirement for conduct to be considered illegal. We’ve covered this in-depth.

Now, the state makes clear that “any harassing behavior that rises above petty slights or trivial inconveniences” can be considered sexual harassment. The policy explains that “there is no single boundary” to determine whether challenged conduct is illegal and the law views wrongfulness based on the standpoint of a reasonable victim with the same protected characteristics. Even more, it instructs that generally “any behavior” where an individual is treated worse because of their actual or perceived gender, sexual orientation, or general expression is a violation. This can include actions that interfere with an individual’s work performance (regardless of intent) and employment decisions including shifts, hours, and project assignments.

Notably, the policy also states that any conduct – even one single instance – can give rise to harassment. In all, this is a much more sweeping approach than in the past.

Examples, Examples, Examples

The policy lists several examples of harassment, which include straight-forward conduct that anyone would recognize as sexual harassment (such as touching, assault, etc.), as well as examples of less overt conduct that would constitute harassment. This includes:

• Remarks about an individual’s gender expression, including remarks about wearing clothing typically associated with a different gender identity or intentionally misusing an individual’s preferred pronouns
• Asking employees to take on traditionally gendered roles, such as asking a woman to serve refreshments at a meeting
• Remarks, jokes, questions, and comments about a person’s sexuality, romantic history, or sexual experience

The policy also lists examples specifically targeting remote and hybrid workplaces, including:

• Displaying pictures, posters, reading materials, and similar items that are sexually demeaning or pornographic, including during virtual meetings
• Making comments over virtual platforms and messaging apps

A Spotlight on Gender Diversity

The new policy also signals a shift in focus to gender diversity, stating that understanding it is “essential to recognizing sexual harassment.” It states that the “gender spectrum is nuanced” and defines the most common gender identities as cisgender, transgender, and non-binary. Throughout the policy, the NYSDOL makes clear that enforcers will take harassment based on a person’s gender expression seriously.

Revamped Retaliation Standards

The new policy ramps up the retaliation section, signaling that enforcers may be eyeing these claims with more scrutiny and broadening the type of conduct employees should consider retaliatory. It lists several examples of retaliation, including reducing hours, assigning less desirable shifts, publicly releasing personnel files, labeling an employee as “difficult” and excluding them to avoid “drama,” and moving an individual’s desk to a less desirable location. It also addresses conduct that takes place outside of work hours, including disparaging comments on social media.

Focus on Bystander Intervention

One of the most substantive additions is a new section on bystander intervention. It requires supervisors and managers to report harassment when they see it, and encourages other employees to do so as well.

Notably, the policy advises that bystanders interrupt harassment by engaging the individual being harassed, ask a third party to intervene, record or take notes on the incident for future investigation, check-in with the person who has been harassed after an incident, or confront the harassers and identify the behavior as inappropriate.

Expanded References to Other Forms of Discrimination

In a similar vein, the policy also directly addresses discrimination based on all protected categories (including race, religion, immigration status, and disability). It states that the same reporting and investigation procedures outlined in the sexual harassment policy will apply to any type of discrimination.

Next Steps for Employers

This new guidance does not change the law. But, it does set forth clear examples of conduct that will no longer be tolerated. For some employers, this new guidance may mean updating company handbooks and policies. But for all, it should mean taking a close look at current training programs (particularly for managers) and protocols for dealing with sexual harassment.

Managers of New York based employees, regardless of level and or location, are now expected to know, understand, and abide by these new guidelines in the workplace.

If you have any questions about compliance with this new guidance, or any other Labor or Employment laws, please contact your Kelley Drye relationship attorney, or any partner in our L&E group.

This latest monkey-wrench was thrown into the gears just last week by federal district court Judge Denise Cote when she held that New York’s arbitration law prohibiting arbitration of sexual harassment claims (effective as of July 2018 and reported on by this blog last year) is preempted by the Federal Arbitration Act (“FAA”), and is therefore invalid. This is the first case deciding the merits of this arbitration exclusion. And although Judge Cote didn’t formally rule on the more general, brand-new bar on arbitration of all discrimination claims (harassment or not), she observed in a footnote that the more general bar suffers from the same problem and is probably preempted by federal law, too.

This decision will likely result in a failure-to-launch of the arbitration prohibitions in this latest round of legislation. But for now, here’s the unsettling message for employers navigating the ever-shifting landscape of discrimination law obligations: the new provisions of New York law barring mandatory arbitration of all employment discrimination claims will be struck down, but for the time being, you can’t count on it.

The Facts

In Latif v. Morgan Stanley, et al., the plaintiff alleged that he was subject to discrimination, a hostile work environment, and retaliation, all in violation of federal, state, and city law. Specifically, Mr. Latif alleged that he was the target of inappropriate comments regarding his sexual orientation, inappropriate touching, and offensive comments about his religion. Mr. Latif also alleges he reported these events to human resources, and was terminated shortly thereafter.

As part of his onboarding documentation at hire, Mr. Latif executed a Morgan Stanley Offer Letter. The Offer Letter incorporated Morgan Stanley’s CARE Arbitration Program Arbitration Agreement. This arbitration agreement set forth that any “covered claim” between Mr. Latif and Morgan Stanley would be resolved by binding arbitration. “Covered claims” included “statutory discrimination, harassment and retaliation claims.” The agreement was to be construed in accordance with the FAA.

The Holding

Morgan Stanley moved to compel arbitration of all Mr. Latif’s claims. Mr. Latif did not dispute that his other claims were subject to arbitration, but specifically argued that the sexual harassment claim could not be sent to arbitration due to the New York law prohibiting arbitration of these claims.

To the contrary, Judge Cote found that Mr. Latif’s sexual harassment claims were subject to mandatory arbitration since New York’s law was inconsistent with the FAA. She found that the FAA is clear: when a state law prohibits the arbitration of a specific type of claim (in this case, a sexual harassment claim), then that state law is “displaced by the FAA.” In other words, the FAA’s strong presumption of favoring the enforcement of arbitration agreements overrides New York’s attempt to prohibit arbitration of sexual harassment claims.

Judge Cote went even further to suggest that New York’s recent legislative amendment of prohibiting mandatory arbitration for all discrimination claims would likely meet the same fate.

What This Means for Employers

No one can blame employers who want to rush to their arbitration agreement template and reinsert sexual harassment claims as a covered claim. However, since the Latif decision is only a trial court decision, and there is likely to be an appeal to the Second Circuit, employers should exercise caution.

For those employers that wish to revise their arbitration agreements, they should be prepared to engage in a similar court battle over the validity of arbitrating sexual harassment claims. Depending the whether this battle will be in state or federal court, and depending on the judge who decides the matter, employers may not see the same result as Latif. In that case, the employer will then have to continue onto litigation in court.

For those employers who don’t wish to revise their arbitration agreements, they should closely watch the legal news regarding this topic to see if additional trial courts, or better yet, an appellate court, reinforce Judge Cote’s decision in Latif. This may take a few months to a few years.

Ms. Pao’s resignation from Reddit, however, raises different and potentially disturbing implications about the potential for harassment and abuse over social media.

As background, Reddit and Ms. Pao came under criticism over the past several weeks after Reddit terminated the employment of executive Victoria Taylor, a move which turned out to be wildly unpopular among Reddit’ s online community. As a first stage of protest, many of the sites message boards were shut down by the “moderators,” volunteers who monitor the “sub-Reddit,” the smaller user communities within Reddit. Ms. Pao then apologized on July 6 for the handling of Ms. Taylor’s dismissal, and for a “long history of mistakes” by the company. That apparently did not quell the uproar or satisfy her critics. An online petition demanding her dismissal garnered 213,000 signatures. More disturbing, however, were the comments Reddit users began posting about Ms. Pao. I have looked at some of these comments myself, and some are truly horrific. They range from profanity, some of which is blatantly sexist and racist, to death threats. Of course, most of these posts were anonymous.

Putting aside why Ms. Taylor was terminated (which no one other than the Reddit management team knows) or whether Ms. Pao and the Reddit management handled that correctly, Ms. Pao clearly did not deserve the hateful comments which were directed at her. Even Reddit’s Chairman Sam Altman came out, as he was announcing her resignation, to criticize some of the comments about her, calling it “sickening”. Other former Reddit moderators, such as Katherine Cross, have since observed that the Reddit platform seems to incite abuse by “harassment swarms” that are “ginned up by the websites more toxic users and communities.”

This incident offers a high profile example of the kind of anonymous bullying which can occur on social media, and which employers should be wary of among their own employees. The ability of your employees, whether using some message board or social media or internet site, to post nasty or abusive or discriminatory comments about their co-workers or managers is a growing problem. Studies and experience have shown that people are much more willing to “say” mean and abusive things when they can hide behind the anonymity of the internet. There is also a “mob” mentality, when a group of people gather on a site, and start feeding off each other. This Ellen Pao incident is a prime example of such cyber-bullying.

Adding to the complexity of this issue, an employer’s ability to discipline employees for this type of behavior is limited by the National Labor Relations Board, which has taken a very expansive view of employee “protected activity.” Thus, you must proceed carefully before you discipline an employee for social media activity.

The law requires employers to maintain a workplace which is free from abuse and harassment, whether that abuse happens “live” or is received electronically. This is a huge challenge, especially if an employee complains of abuse which they are receiving outside of work hours, through electronic channels which the employer does not control. The law will not expect you to work miracles, but you will be expected to respond to such a situation. When I have faced this with clients, we have made an attempt to investigate internally and then have assisted or supported the employee if she has chosen to the police to make a complaint. Again, while it is impossible for an employer to monitor all of your employees behavior, you do need to take the steps you can to prevent on-line harassment if you become aware of it.

Foster, a university police officer, alleged that she was terminated just weeks after she complained that a fellow employee spied on her while she tried on her uniform, made lewd and sexual comments, and made physical advances towards her. The university conducted an investigation and took action in response to Foster’s complaints. The university contended that despite the temporal link to those complaints, plaintiff was terminated because she was inflexible about work hours, was not a “team player,” and abused her paid time off. During a deposition, one of her supervisors said she was terminated because she was not capable of moving past the sexual harassment incident, and because of this, she was not a good fit for the department.

The lower court initially denied the university’s summary judgment based upon these facts. However, after a motion for reconsideration in light of the intervening Supreme Court decision in University of Texas Southwestern Medical Center v. Nassar, the District Court reversed and granted summary judgment in favor of the defendant.

In Nasser, the Supreme Court eschewed the lessened causation test stated in Title VII, and found that a Title VII plaintiff must prove her case by the traditional principles of but-for causation – namely, that the “unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” The lower court found that this altered the fundamental three-step burden shifting analysis enunciated in the seminal McDonnell Douglas v. Green decision:

1. A plaintiff must first establish a prima facie case by a preponderance of the evidence, i.e. allege facts that are adequate to support a legal claim.
2. Then the burden of production shifts to the employer, to rebut this prima facie case by "articulat[ing] some legitimate, nondiscriminatory reason for the employee’s rejection.”
3. Then the employee may prevail only if he can show that the employer’s response is merely a pretext for behavior actually motivated by discrimination.

Courts have grappled with how liberally to apply what has been known as the “opposition” clause, and just last week the Sixth Circuit further expanded the concept .

In EEOC v. New Breed Logistics, the Sixth Circuit affirmed a jury’s award of almost $1.5 million against an employer for violations of Title VII that included a finding that the employer retaliated against a former employees who had not made any complaint at all, but alleged she simply made verbal “demands” to a supervisor to cease his (allegedly) offensive conduct. The Sixth Circuit had previously found that Title VII “protects not only the filing of formal discrimination charges with the EEOC, but also complaints to management and less formal protests of discriminatory employment practices.” However, it had never gone so far as to say that a verbal request to stop "harassment" was now protected activity.

The trial court had instructed the jury that protected conduct “can be as simple as telling a supervisor to stop” on the basis of two District Court decisions finding the same. The employer objected to that instruction, and appealed the verdict.

Relying on the expansive language of the opposition clause in Title VII, and Supreme Court precedent broadly interpreting that term, the Court found that “[i]f an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct.” In finding that this applied to the complaints at issue, the Court stated that “the language in the opposition clause does not specify to whom protected activity must be directed,” and that it would be inequitable to require complaints to be made to a “particular official designated by the employer.”

In so finding, the Court rejected Fifth Circuit precedent which held that such a situation would lead to every harassment claim “morphing” into a retaliation claim. This case, and another recent Second Circuit decision concerning oral complaints under the FLSA, demonstrate the importance of a robust policy of complaint documentation to avoid the murky position an employer may find itself in when it must defend against claims of retaliation based upon oral complaints.

What does this mean for employers – undoubtedly more confusion. Now, a company cannot defend a retaliation claim by asserting that no complaint was made, or that an employee did not go to Human Resources and avail herself of the grievance process. A retaliation claim can potentially arise from anywhere, anytime an employee tells a manager to stop doing something she finds offensive. The possibility for employee abuse of this new broad definition of "opposition" is endless. Employers, especially those in the Sixth Circuit, should take note.

A brief background: Ellen Pao, a junior partner at Kleiner, claimed that she had been harassed and discriminated against while employed there because she is a woman. Ultimately, she alleged that after she complained about this perceived discrimination, she was then terminated. She sought many millions of dollars in damages – and potentially multiples of that in punitive damages.

Some of the 24 days of testimony included tales of workplace romances, alleged sexual advances on business trips, and firm events which excluded women, like a high-end ski trip that was “men only.” The jury, however, also heard from other witnesses, including women at Kleiner, who said that the firm was a fair place to work, that it was a competitive atmosphere for women and men alike, and that Ms. Pao was the cause of her own difficulties . Clearly, the jury believed Kleiner’ s version of events, rejecting out of hand all of Ms. Pao’s claims.

Looking at it from afar, many are already saying that – even with a loss – the Pao case has sent some powerful messages through the high tech industry in Silicon Valley.

But, if you are not in the high tech world, you are probably asking, “What does this case have to do with my company?” The answer is: a great deal.

First, any time there is a high profile harassment, case – whether it results in a plaintiff’s verdict or not – it brings sexual harassment back into the media and the spotlight, raising the specter of a spike in new claims. Some women may see and hear about this case and be tempted to become the next Pao. Although a jury found that Pao could not connect the industry’s male-dominated culture to Kleiner’s failure to promote her or to fire her, the case underscores how a work environment can provide fodder for discrimination claims and shine a spotlight on your culture.

Second, all employers should remember that any victory like this comes at a huge cost for the defendant/employer. There are first the direct costs of hundreds of thousands (maybe millions) of dollars in legal fees. There are also indirect costs, like the time taken away from the business by senior management because of the ligation, and then the public “airing” of the company’s dirty laundry in court and in the newspapers. No company wants either, and depending on your business the reputational harm from a case like this - win or lose- may be substantial. In fact, that’s what much of the post-trial press has been about: Pao lost in court, but her former employer may have lost in reputational terms.

Thus, the real win for a company is to avoid being the next Kleiner Perkins. But how can you do that?

All companies have harassment policies, so you do not need another lawyer telling you to review your policy – we talked about this in our March 12th blog post - you should review the policy and make sure that it is strong, and well publicized. You should also consider periodic training of all managers, including your most senior executives.

However, the harsh reality is that the majority of these cases happen in companies that have good policies, and thus do not turn on the strength or weakness of a policy. In fact, many executives will tell you that they know harassment is against company policy – but they do it anyway. No company can stop every bad act or prevent every “off color” joke, drunken escapade or office romance. People are people and these things will happen.

A company can minimize these episodes of “bad” behavior, however, especially within the office and at company events. It can minimize bad behavior – not with the words in a policy – but by the actions of its most senior management. Senior management must lead by example, and not condone, let alone participate in, the kinds of behavior that Pao complained about. Senior management can still have fun, but they should always be mindful that they are representing the company, and that their behavior sends a message to the more junior staff.

A company can also foster a culture where all employees are treated with respect, and efforts are made to ensure that there is parity among employees at the same level. For instance, if there is a women’s “spa day” for female employees and clients, then the male employees should be permitted to do a “guys” event of their choosing.

If there is an important dinner with senior management or an important customer, efforts should be made to invite a diverse group of employees, not just the most senior group, but some of the more junior people who worked on the project.

Finally, a company can control how it responds to allegations once they are reported. It goes without saying that claims of harassment or discrimination, whether by men or women, should be taken seriously and investigated promptly.

Investigation is not enough, however – a company that really wants to create the right culture must act when it does uncover any incidents of harassment or discrimination. This is not always easy, especially if the alleged bad actor is a member of senior management. However, if the incident is confirmed some action must be taken to address it. As always, actions speak louder than words, and other employees will see that swift action, and take heed as to how they behave in the future.

In short, whatever business you are in, as women rise higher in a company, senior management needs to be aware of how they are treated, be mindful of how all executives behave, and promote a culture which will not foster litigation like the Pao case.

The real victory of this verdict will be in the message it sends to all employers, to foster an atmosphere where all employees – male and female alike – can work and socialize in a way that fosters respect for one another.

First, there were alleged “slights” in the treatment of women at Kleiner. For example, women partners were not invited to an important client dinner with Vice President Al Gore and then were excluded from a company ski trip. One male partner asked two female junior partners to take notes at a meeting. The firm has explanations for all of these incidents, but women felt that they were being treated as second-class citizens.

Then there are the more significant “events” and incidents. It is undisputed that Ms. Pao had a consensual affair with a married partner. When that ended, the same partner appeared at the door of yet another female partner’s hotel room in a bathrobe carrying a wine bottle. When that woman complained, a partner suggested she “did not want to go public” and that she should be “flattered” by his attention. When Ms. Pao tried to complain about the partner, senior partner John Doerr laughed it off, claiming the partner was a “sex addict.”

Beyond these lurid incidents, the testimony also reveals a deeper possible double standard that the women like Ms. Pao had to endure. Ms. Pao’s evaluations revealed sometimes contradictory advice and criticism. In some situations they were told to “speak up,” while at other times they were told to be quiet.

When outside counsel (a male law firm partner) was finally brought in to investigate Ms. Pao’s complaint, it is alleged that no one could locate a copy of the firm’s harassment policy. When asked about Ms. Pao, Mr. Doerr told the investigator she had a “female chip on her shoulder.” Once he made his report, Mr. Doerr did not have time to read it, so it was merely “summarized” for him. There are also now allegations from Ms. Pao that the outside counsel was biased, as he was trying to get hired by Kleiner for an in-house position.

Ultimately, Ms. Pao claims that she was terminated in retaliation for reporting this alleged harassment.

Again, the trial continues and the defense is now cross-examining Ms. Pao and putting some holes in her story, but many of the facts which have come out at the trial are disturbing.

So you may ask yourself what does this case have to do with my company?

While the incidents which are alleged in the Pao case may not happen in every workplace, they do bear a strange similarity to some of the allegations in the recent Faruqi harassment lawsuit in New York, so patterns emerge which all employers should take note of:

• It’s Not Just About a Policy - Remember that your harassment policy should be a living, breathing thing – which everyone not only knows about, but follows. It should be more than a piece of paper; it should be part of your culture. It never hurts to have an annual reminder or training for management on respectful behavior in the workplace. Make sure all of your employees also know the policy and know how to complain if needed. Also, respectful behavior starts at the top, so if senior executives treat women and all employees with respect, then that attitude will trickle down to the rest of the staff.

• Love (At Work) Is not a “Many Splendored Thing” – Affairs, even totally consensual affairs, between and among employees, and especially where a more senior executive is having an affair with someone at a more junior level, rarely are a good thing for the employer. As we see in these cases, these relationships may end badly and then the “he said/ she said” battle begins. The company will rarely be able to sort this out. Also, they can stir resentment and bad feelings among other staff. Senior executives should be reminded that affairs with those junior to them are frowned upon.

• The workplace does not end at your office door - The Pao and Faruqi lawsuits both included allegations of “bad” behavior on business trips and at firm social functions, most of which included some over-use of alcohol. Again, remind your executives especially that they are always representing the company, and that their behavior – whether on a business trip or holiday party – MUST be professional at all times. The reality is that the company can be liable for the behavior of a senior executive at these events, and executives need to be aware of that.

In Greengrass v. International Monetary System Ltd., No. 13-2901 (7^th Cir. Jan. 12, 2015), the Seventh Circuit Court of Appeals reversed a summary judgment decision of the District Court and determined that an adverse employment action included listing an employee’s name in publically available filings with the Securities and Exchange Commission (“SEC’).

In September 2007, Greengrass made a written complaint to IMS alleging harassment by a manager, and subsequently quit her job in November 2007. In January 2008 Greengrass filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) against IMS alleging sex discrimination, national origin discrimination, and retaliation. In July 2008 IMS received correspondence from the EEOC seeking information regarding other sexual harassment claims leveled against the company and, in January 2009, IMS received notices that the EEOC wanted to conduct interviews regarding Greengrass’s charge of discrimination. In September 2009 the EEOC found reasonable cause to believe that Greengrass and other females as a class were subject to harassment because of their sex and national origin, and Greengrass and females, as a class, were constructively discharged because of their sex, national origin, and in retaliation for engaging in protected activity. In December 2009 the parties resolved Greengrass’s original EEOC charge of discrimination through conciliation, which did not include IMS’s rehiring of Greengrass.

As a publically traded company, IMS is subject to the Securities and Exchange Commission (“SEC’) periodic reporting requirements. Specifically, IMS is required to describe any material legal proceedings, including principal parties, facts giving rise to the proceeding, and the relief sought. See 17 C.F.R. § 299.103. IMS did not refer to Greengrass’s charge of discrimination in its 2008 SEC disclosures. However, for the next SEC filing in April 2009, and less than three months after IMS received notices that the EEOC wanted to conduct interviews (in January 2009), IMS chose to include Greengrass’s EEOC charge of discrimination and to specifically identify her, stating: “On January 20, 2008, Celia Greengrass filed a sexual harassment complaint with the [EEOC]. The claim is still under investigation by the EEOC and IMS believes the claims to be meritless and will vigorously defend itself.” These SEC disclosures were repeated in a subsequent amendment to the annual report and in a quarterly disclosure in May 2009.

After leaving IMS, Greengrass had difficulties finding and maintaining regular employment, and she attributed this to IMS’s SEC filings that specifically identified her. Greengrass claimed that a Google search of her name displayed results of IMS’s SEC filings that included her name, and further claimed that a recruiter informed her that she was “unemployable” due to this information. Thus, in September 2010, Greengrass filed a second EEOC charge of discrimination alleging IMS retaliated against her by identifying her in its SEC filings because of her previous charge of discrimination, and after receiving the EEOC right-to-sue letter, subsequently filed a lawsuit against IMS alleging retaliation under Title VII of the Civil Rights Act, as amended.

The Seventh Circuit found that listing Greengrass’s name in publically available SEC filings and referring to her complaint as “meritless,” constituted a materially adverse employment action. According to the Court, Greengrass assembled a convincing array of circumstantial evidence. Specifically, the court stated that a reasonable jury could find that IMS decided to retaliate against Greengrass not when she filed her EEOC charge, but rather when IMS saw that the EEOC was taking the charge seriously in January 2009, and that the IMS retaliation occurred in its next scheduled SEC filing in April 2009 (evidence of suspicious timing). Greengrass also provided circumstantial evidence of animus and IMS pretext sufficient to demonstrate a causal link that IMS would not have taken the adverse action but for Greengrass’s protected activity.

Publically traded companies should heed this opinion when reporting any material employment-related legal proceeding under the SEC requirements. A company should maintain a policy of being consistent in its application of disclosing material legal proceedings under the SEC reporting obligations, and look to its past reports of material legal proceedings for guidance. Furthermore, a disclosure could lead to negative consequences if it appears to be solely aimed at dissuading employees from making or supporting claims of discrimination. It is important to note that once an EEOC charge of discrimination is filed, the claimant’s name and basic information about the allegations of discrimination will be disclosed to the employer, and during the course of the investigation information about the charging party and the respondent will be kept confidential by the EEOC and will not be disclosed to the public by the EEOC. If a claim or charge of employment discrimination is not made public, then perhaps it would be wise that publically traded companies not identify the name of the employee/claimant until such time a publically available lawsuit is filed in federal (or state) court.

Before the celebrations begin, a couple of warning points:

• First, an employer cannot use this defense if the alleged harasser took actual adverse action against the employee (i.e. demoted, suspended or fired the victim).
• Second, this defense will not be effective if your company cannot show that its harassment procedures were both published and enforced.

If you do not live by the words of the policy, it will not have the effect which you want it to have on your workplace.

First, as reported by Law360, the long-running lawsuit by a female associate against her former law firm, Faruqi and Faruqi, and the individual partner who she claims sexually assaulted and harassed her came to an end, with a jury verdict in the plaintiff’s favor of $140,000 in compensatory and punitive damages. Of course, this is not the sum total of the “cost” of that lawsuit to the firm, which likely paid millions in defense fees, and now is liable to also pay the plaintiff’s attorneys fees. Commentators are also talking about the potential damages to the firm’s reputation and ability to recruit top talent. Putting aside who was “right” or “wrong” and I do not know the facts, this lawsuit has likely come at great cost to this law firm.

The second item, reported by Ashley Southall and Tamar Lewin in today’s New York Times, was that Harvard had adopted an official policy which banned sexual or romantic relationships between faculty and undergraduates. My reaction for one was – “wasn’t that already banned”? It was not, and I applaud Harvard for having done the right thing. As the Times reported, Harvard determined that any professor who had the power to grade a student should not then be engaging in a sexual relationship with that student. Whether real or perceived, there would always be a possibility that the student (and other students not in this relationship) could believe that it was a “quid pro quo” and that the relationship would result in more favorable treatment for the student.

So what is the lesson? The lesson is that sexual/romantic encounters are a danger zone in any situation where someone of power can exert that power to coerce (directly or indirectly) someone with less power to engage in a relationship. Whether it is a VP at a bank, a partner at a law firm, or a professor in college – when one person has the power to award raises, bonuses, good reviews and good grades to another, that person also has the power to convince the subordinate to engage in conduct or start a relationship that is not 100% “consensual.” Often in the light of day, or when the relationship ends, the employer or institution will face charges that the relationship was forced or constituted harassment, claims that are very difficult to defend.

These articles should be a reminder to all in positions of authority that sex and jobs or sex and school rarely are a good mix. If you are a manager, you should not be asking for or engaging in sexual relationships with those that you manage, and the same goes for educators. Like oil and water, the two don’t mix well.

Finally, and to remind all general counsel and human resource professionals of the obvious, the best thing you can do is make sure that your sexual harassment policy is more than just a piece of paper. Make sure that senior leadership leads by example, make sure that conduct in the workplace is always professional, and make sure that complaints are promptly investigated.