New York Lawyer
June 27, 2002

Q:
I am a partner who is aware of a situation in another department where a younger female associate is being somewhat harassed by a client. By that I mean inappropriate remarks, like saying she�s wearing a nice dress, asking her about her social life, sitting uncomfortably close to her, or closing the door when it�s not necessary.

I found this out because an associate in my department mentioned it to me in passing, then swore me to secrecy after she saw that I was concerned, saying that the other woman doesn�t want anyone to know because she�s afraid no one will believe her, the client will get angry, we�ll lose the business, and so forth.

I�m in a quandary because I obviously don�t want this woman to be putting up with this behavior, but again, I�m not really supposed to know this, and if I reported it to the partner in charge of the particular case, what if something happened to the associate and her career? I�d feel very guilty if she suffered unfairly in the aftermath. Also the behavior involved is irritating but not egregious in nature.

What should I do?

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A:
There are a number of things you can do in this situation. But doing nothing is not one of them. You are in a position of responsibility due to your partner status and therefore have obligations beyond those of a bystander or friend who happens to know confidential information.

This is not to say that your concerns all around aren�t valid. Clients are responsible for 18 percent of harassment in firms, according to Dr. Fraeda Klein of Klein Associates in San Francisco, who consults with professional service firms on issues of bias and diversity. And often firms that are severe with people within the firm on harassment issues turn a blind eye to client misbehavior, reasoning that they should give the client more leeway because they don�t want to lose the business or alienate the client. Therefore those who raise complaints are sometimes quietly marginalized.

There are two dimensions here. One is the legal/organizational dimension, dictated by law. The other is more informal, responding to your legitimate concerns about protecting the associate�s career and your probable concern about breaching a confidence.

On the legal and organizational side it�s quite clear that you have a duty to do something about it. You are a "supervisor" under the law, according to employment lawyer Lynne Anderson at Newark, N.J.�s Sills Cummis Radin Tischman Epstein & Gross, P.A., and have to address the situation even where someone complains but asks the employer not to do anything. If you don�t, Anderson points out, you expose the firm to liability for failing to prevent and correct harassment.

Anderson advises that the firm proceed in a confidential manner, with designated, trained firm members responsible for responding to internal complaints. The associate has to be assured that there won�t be any retaliation, and the investigation has to be discreet.

"For example," Anderson says, "having the associate called into a conference room to be questioned by the Chair of the Department, or the head of the Management Committee, will not necessarily serve the goal of having a policy that encourages employees to report harassment or inappropriate behavior before it becomes severe or pervasive. The investigation should be done on a confidential `need to know� basis, and should not be openly discussed with other members of the firm."

You and others can work with the partner in charge in devising solutions if there indeed is a problem, but Anderson warns that the solution shouldn�t jeopardize her career. If she�s removed from the case, for instance, make sure she�s put on another case of equal standing so it doesn�t look like she�s been demoted.

So much for the official, legal dimension. More informally, you can handle the informal issues in a variety of ways. For instance, you can quietly tell the associate-informant of your legal duties to report a problem, emphasizing that you want very much to preserve your relationship with her but that you have broader duties. Tell her that any investigation will be conducted discreetly and that she shouldn�t talk about it either, to prevent the gossip machine from going out of control.

Don�t be tempted to shift responsibility to yourself by approaching the partner in charge and saying that you personally have observed or become aware of the questionable behavior, and suggest that there be vigilance and follow up. If you do that, you will be part of the formal investigation and it will get pretty awkward to keep up what is a falsehood. (Also, if in the off-chance that the information related is false, you could be repeating completely unwarranted and inaccurate information that causes other people tremendous grief.)

Another approach, though, is to say to the partner in charge, "We need to look into this situation, which I believe involves Jane. I�m reluctant to tell you how I know that. If I need to I will but for now I�d rather not, not only to preserve my relationships but also to encourage people to come forward about these things rather than keeping it to themselves."

Sincerely,
Holly English
Principal Consultant, Values at Work