ABA Making a Positive Impact on the Workplace – New Resolution 302

In the #MeToo era, the American Bar Association has taken a bold step to address and eradicate sexual harassment in the workplace. It is a problem that strikes employees at all levels and in all industries, but until recently, has not been addressed by the legal profession. Though Resolution 302 is nonbinding, it has the potential of impacting the estimated 1.1 million people who are employed in the industry.

A recent study published in Legal Week highlighted the problem, revealing that over half of the women in the legal industry have suffered workplace harassment on more than one occasion. Leaders are paying attention to the scope of the problem and demonstrated their commitment to change through the unanimous approval of Resolution 302 at the American Bar Association’s 2018 Midyear Meeting. Resolution 302 serves as a much-needed turning point in the industry’s approach to harassment and retaliation.

What Is Resolution 302?

In a decisive step to create workplaces that are free from harassment, Resolution 302 urges “employers in the legal profession to adopt and enforce policies that prohibit, prevent, and promptly redress harassment and retaliation based on sex, gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity.”

This resolution is unique in addressing the intersection of gender and race-based discrimination. Women of color suffer certain types of harassment at even higher rates than white females in the legal profession. Resolution 302 will increase awareness of this problem and grant female professionals of all ethnicities a voice.

The language may be broad, but the message is clear – law firms should not tolerate sexual harassment in the workplace, nor can they turn a blind eye to the problem. Workplace policies must explicitly address the potential for harassment, and provide guidance for taking appropriate measures when it occurs.
Resolution 302 outlines specific steps that employers can take to address current problems and prevent future harassment. These include:

• Making all employees and directors aware of company policies that sexual harassment will not be tolerated.

• Explicitly stating that harassment policies apply to all employees, management, and third parties at all work-related functions, no matter the location.

• Offering anonymous reporting methods or other alternative approaches for an employee to notifying their employer of sexual harassment.

• Investigating all complaints promptly and thoroughly and providing the complainant with a copy of the investigation report.

• Implementing remedial actions for substantiated complaints, up to and including termination.

• Addressing the problem of sexual harassment through innovative programs and regular training that incorporates the most recent social science on the issue and goes beyond just “marking the box” exercises.

Following the hallmark decision, Stephanie Scharf, chair of the ABA Commission on Women in the Profession and the resolution’s main sponsor, said that “there can hardly be a resolution more timely than 302.” This was the first ABA House of Delegates meeting since the #MeToo movement picked up steam in late 2017 and Resolution 302 represented the ABA’s first update on harassment since passing an amendment in 1992 suggesting that the practice should not be tolerated.

What Does Resolution 302 Mean for the Future of Women in the Legal Industry?

The ABAs overwhelming support of Resolution 302 indicates that industry leaders are ready to take a more proactive approach against sexual harassment. Advocates hope that legal employers will no longer look the other way when faced with harassment complaints. While the resolution may not wipe out harassment for good, it demonstrates that the issue remains a priority for industry leaders and that employers who fail to make policy and cultural improvements will be held accountable.

Because ABA sets the profession’s ethical standards, employers’ failure to abide by Resolution 302 could leave them vulnerable to aggressive harassment lawsuits. Employers must comply with the resolution — or face harsh repercussions.