The Oklahoma Bar Journal September 2023

your sexual harassment and/or discrimination complaint; failing to do so would constitute a Title VII violation. 21 This applies even to small firm employers without a Human Resources Department that may have to hire a third-party investigator (typically an employment lawyer) and/or notify its professional liability insurance company if it has employ ment coverage to fulfill its legal duty. In a perfect system, this is where the harassment ends; the employer inves tigates and determines whether disci pline is warranted. If it doesn’t, your employer could be held liable for inaction. If you think you may have a viable discrimination or sexual harassment claim, put your employer on notice (preferably in writing), and find an experienced employment law attorney to evaluate your potential claim with the Equal Employment Opportunity Commission, the Office of Civil Rights Enforcement with the Attorney General’s Office and/or ultimately file a suit against your employer. Do so quickly as a Title VII claim could be barred if a discrimination charge is not filed with the EEOC or the OCRE within 180 days of the last unlawful employment action. 22

Anti-Discrimination Act, which also requires an employer to have at least 15 employees. 17 If an employer has less than 15 employees, it can still be held liable through a Burk tort action, which prohibits constructive or actual discharge of an employee in violation of an Oklahoma public policy goal. 18 In either circum stance, there needs to be a pattern of microaggressions; a onetime crass comment or inappropriate advance is almost never actionable. Further, Oklahoma follows an at-will employ ment doctrine, so an employer may terminate an employee at any time – even for no cause or a cause that is morally wrong – without conse quence. 19 Even so, being fired does not mean you have lost your right to redress for sexual harassment. If you have been fired, demoted or faced any kind of adverse employment action in retaliation for reporting sexual harassment, your employer could be held liable in a Title VII retaliation or Burk tort action. 20 If you are ever subject to sex based harassment or discrimination in your workplace, document and collect proof and report the behavior to human resources or management. Your employer must investigate

Sexual Harassment and Discrimination are Unethical But sexual harassment isn’t just illegal, it’s unethical. Attorneys are held to a heightened ethical stan dard and may be sanctioned for their own discriminatory behav ior. Rule 8.4(g) of the Model Rules of Professional Conduct states that it is professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of ... sex.” 23 Rule 2.3(B) of the Model Code of Judicial Conduct covers the same ground almost verbatim for judges. 24 Courts take this sort of thing seriously. Take, for example, the case of Claypole v. County of Monterey , where an attorney got hit with sanctions after he told his female opposing counsel, “[D]on’t raise your voice at me. It’s not becoming of a woman.” 25 Because of this single comment, the court said the following: A sexist remark is not just a pro fessional discourtesy, although that in itself is regrettable and all too common. The bigger issue is that comments like [this attor ney’s] reflect and reinforce the male-dominated attitude of our profession. ... When an attorney makes these kinds of comments, “it reflects not only on the attor ney’s lack of professionalism, but also tarnishes the image of the entire legal profession and dis graces our system of justice.” 26 Ethical rules against sexual discrimination are not just meant to protect victims or bring about gender equality but also to protect the integrity and reputation of the legal profession.

Ethical rules against sexual discrimination are not just meant to protect victims or bring about gender equality but also to protect the integrity and reputation of the legal profession.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL