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Discrimination Claims
April 4, 2005 It may be that law firms have some of the highest risks of employment discrimination claims and receive some of the worst legal advice of all employers. That’s what we conclude after speaking with firms all over the country, as they attempt to cope with underwriting questionnaires for employment practices liability insurance.
The risk is certainly present in law firms. Consider the circumstance under which law firm HR Directors operate:
- high numbers of females in a single working class (secretaries),
- a large swing in compensation from the highest paid partners (predominately white males) to the lowest paid clerical workers (frequently black and Hispanic females),
- under-representation of blacks and Hispanics in skilled and highly compensated positions,
- historically poor and inaccurate employee evaluation systems,
- high levels of voluntary and involuntary attrition, and
- a highly stressed atmosphere.
All of this provides an almost perfect setting for employment practice problems.
What kinds of issues cause discrimination claims? Many law firm HR Directors believe sex discrimination makes up the greatest number of both reported and non-reported incidents. Last year 12,399 sex-discrimination claims were filed against U.S. companies with between 15 and 100 workers (while many large law firms have hundreds and even thousands of employees, we believe that the patterns of discrimination for all law firms are more closely aligned with the small business grouping). Here is a breakdown of the types of claims:
26% Sexual Harassment – Unwelcome sexual advances, requests for sexual favors or other conduct of a sexual nature.
25% Discharge – Firing based on gender.
10% Terms/Conditions – Inequitable application of workplace rules governing such things as vacation time.
9% Harassment – Offensive or derogatory comments or other physical or verbal conduct based on gender, but not of a sexual nature, that creates a hostile work environment.
7% Constructive Discharge – When an employee feels compelled to leave because of intolerable work conditions.
23% Other – Includes charges related to wages, promotion, hiring and discipline.
One of the most common complaints we heard from administrators is that they are the cobblers children when it comes to getting solid advice from the firms’ employment lawyers. As one administrator told us, “they can’t envision their partners doing the kind of stuff they run into in client’s businesses.” The result is that many law firm supervisors have not participated in the basic discrimination training that their lawyers routinely do for clients. An HR Director put it more succinctly, “representing the firm is non-billable time so there is no incentive to be concerned until we have a big claim.”
We asked those firms that felt they were getting good advice what the most import issues were. The top three actions were:
1. Have a firm anti-harassment and equal-opportunity policy and make sure it is distributed to all employees. The firm’s employment lawyers probably have a stock version. If not, you can find one at the website of the Employment Law Information Network (www.elinfonet.com). Remember that guidelines written in legalese may be impossible for employees to relate to day to day situations.
2. Keep a written record of performance deficiencies rather than simply depending on the formal evaluation process. Supervisors, especially lawyers dealing with secretaries, don’t like to deliver bad news. So, files of marginal performers are filled with glowing evaluations.
3. Make sure that people who are designated points of contact in sexual harassment problems are trained. Just because a contact is a female lawyer does not mean she has the vaguest idea about what she should and should not do when an aggrieved employee shows up at her door. | 
