One of the long-standing, and most admirable, characteristics of New York City’s Legal Aid Society was that its lawyers were a tough crew. They handled tough cases. They fought hard. They dealt with nasty cases and nasty people, and they were tough enough to do so. As a training ground for criminal defense lawyers, there were few places one could do better.
But has the toughness given way to political correctness? So it appears from their newly revised Equal Employment Policy.
As an equal opportunity employer, The Legal Aid Society prohibits discriminatory employment actions against and treatment of its employees and applicants for employment based on actual or perceived race or color, religion or creed, alienage or citizenship status, sex (including pregnancy), national origin, age, sexual orientation, gender identity (one’s internal deeply-held sense of one’s gender which may be the same or different from one’s sex assigned at birth; one’s gender identity may be male, female, neither or both, e.g., non-binary), gender expression (the representation of gender as expressed through, for example, one’s name, choice of pronouns, clothing, haircut, behavior, voice, or body characteristics; gender expression may not be distinctively male or female and may not conform to traditional gender-based stereotypes assigned to specific gender identities), disability, marital status, familial status, domestic partnership status, genetic information or predisposing genetic characteristics, military status, domestic violence victim status, arrest or pre-employment conviction record, or any other characteristic protected by law.
The laundry list includes things required by law, then every other fashionable trait as well. Predisposing genetic characteristics? How does one even know to discriminate based on genetics, or more to the point, to avoid doing so? And never, but never, mention a colleague’s incredibly awful haircut.
And then there’s harassment, the all-purpose word of choice for accusing another of amorphous wrongs.
Harassment does not require an intent to offend. Thus, inappropriate conduct or language meant as a joke, a prank, or even a compliment can lead or contribute to harassment.
Most people, particularly lawyers, grasp the significance of intent. When any utterance, even a “compliment,” can be harassment, there’s a problem. One can never tell what might offend another person, especially when there is a predisposing genetic characteristic at stake. Some people are unduly sensitive. Others, not so much. How should one know?
Consider a LAS lawyer asking a colleague about tactics in an upcoming rape or child molestation trial. Will she traumatize the lawyer with the facts? Could be, and that’s harassment. Or just the gallows humor that’s a hallmark of criminal defense lawyers, now a risk that could end a job, perhaps a career as one’s marked as a harasser?
And never, but never, ask a fellow LAS lawyer out on a date.
The Society prohibits conduct that constitutes or could lead or contribute to
sexual harassment. Examples of such conduct include, but are not limited to:
• unwelcome sexual flirtations, advances or propositions;
Most of us view a question as a good way to get an answer, such as whether someone would like to go out with us. But if the answer is no, that’s an “unwelcome…proposition.” Can’t have that. It might be too awkward to endure, and LAS lawyers certainly aren’t tough enough to just say no.
But this isn’t just about one’s colleagues, the fellow lawyers of the Legal Aid Society, as the hurt and trauma one might endure from discrimination and harassment can come from anywhere. So anywhere it is:
This policy is for the benefit of and applies to all employees and applicants for employment, regardless of whether the prohibited conduct is engaged in by fellow employees, supervisors, managers, or someone not directly connected with the Society (e.g., a client, judge, opposing counsel, co-counsel, volunteer, or outside vendor).
Apparently, the LAS policy dictates the words and actions of not only its own people, but judges and opposing counsel. How, exactly, it plans to discipline judges and prosecutors for not using a LAS lawyer’s preferred pronoun is hard to imagine, and as for co-counsel, chances are poor that they will find their dictating prohibited conduct to aid in cooperation for their clients’ benefit.
And yes, the clients. They’re in there. Apparently, no LAS lawyer need suffer a client who doesn’t respect their deepest and most delicate feelings. It’s unclear what this means, whether LAS will refuse to defend the rapist, the guy in the holding cell who calls a he a she? If racial slurs upset them, they’re not going to like going to the pens where the language tends to be a bit rougher than in gender studies class.
Criminal defense is a tough business. The lawyers who practice it tend to be tough lawyers, as anybody who isn’t can’t bear the pressure, the demands of the courtroom or the clients who, ahem, are often criminals. These were the types of lawyers who worked for Legal Aid, tough lawyers. Anyone who wasn’t tough enough found out soon enough that they weren’t a good fit for the trenches.
Now, LAS appears to demand that the trenches change to meet the most sensitive feel of their most fragile teacup. No LAS lawyer should have to endure some hard-ass defendant remarking about their buttocks or their career choice working for Lemonade. There will be tears. There will be sadness. There will be clients who just don’t deserve the representation of a LAS lawyer.
Perhaps this isn’t really a concern, the nature of new hires at the LAS being limited to those who have already internalized the need to be utterly inoffensive in every conceivable way to every person they meet. Sure, the judges may not play ball, but the lawyer can always run out of the courtroom to a safe space with a kitten to soothe their fevered brow.
But then, these revised policies suggest that LAS is all about the feelings of their lawyers, at the expense of their clients. And isn’t that really what law is all about these days to the deeply passionate anyway?
Note: This hardly exhausts the problems with this new policy, which goes on to deny the accused basic due process in challenging a claim of harassment, even the source of the accusation to avoid the trauma of confrontation. Nor is firing the end of the line, as LAS will go after the “perp” as well. It’s as if no one there has ever heard of the law.