What is being done about sexual harassment in the legal workplace?
The #MeToo movement overseas and the #Now movement locally, as well as the downfall of several prominent male lawyers, has directed attention to the prevalence of workplace sexual harassment and discrimination in the Australian and New Zealand legal professions. There is abundant evidence that sexual harassment is a serious problem for the profession, and has been for a number of years.
How common is sexual harassment in the legal profession?
In 2013 the Law Council of Australia’s National Attrition and Re-engagement Study found that women and other groups faced real obstacles in advancing their legal careers and obtaining senior roles. One in four women surveyed had experienced sexual harassment in the workplace. In comparison, a survey conducted in 2012 by the Australian Human Rights Commission (AHRC) found one in five (21%) of the people over the age of 15 years surveyed had experienced sexual harassment in the workplace in the previous five years.
A 2018 survey conducted for the Law Society of New Zealand found sexual harassment behaviours in a legal environment in the last 5 years had been experienced by 27% of lawyers surveyed (40% of women and 14% of men).
The AHRC also found that only a relatively small proportion of women – approximately one in five – reported sexual harassment. According to the Australian Financial Review, the Victorian Legal Services Commissioner receives about two to three complaints on average each year alleging sexual harassment or abuse by lawyers; and they are generally from clients or other parties, not lawyers. South Australia’s Legal Profession Conduct Commissioner dealt with two matters involving allegations of harassment or sexual misconduct since July 2014.
These figures suggest sexual harassment in the workplace is more common than workplace bullying. According to a SafeWork Australia investigation in 2012-3, only 9.4% or roughly one in ten people reported being bullied in the workplace, although the rate is higher in some industries.
Sexual harassment, discriminatory conduct and bullying are associated with a risk of poor psychological health and can breach work health and safety legislation. A person conducting the business or undertaking, such as a partner of a law firm, can be personally prosecuted for failing to eliminate or reduce the risk, so far as reasonably practicable.
What is being done to address the problem?
In 2018, the New Zealand Law Society started a program which includes establishing a working group to examine whether the existing legislative framework and processes enable adequate reporting, support and effective action in relation to harassment or inappropriate workplace behaviour. It has also developed an online facility and dedicated helpline, a free webinar on preventing harassment and bullying, and identifying or recruiting members who are particularly well placed to provide support and advice to lawyers on this issue.
A number of prominent legal firms are making public statements about their approach to sexual harassment and it seems that there is a greater willingness to act swiftly and firmly in some cases.
The Law Society of NSW is encouraging the legal profession to review its approach to sex discrimination and sexual harassment as well as strategies for the advancement of women in the workplace. There were an additional 32 signatories to the Law Society’s Charter for the Advancement of Women in the Legal Profession in 2017, with 147 signatories in total since its introduction in October 2016.
Recently attention has also been focused on whether the existing sexual harassment laws are adequate. While cases such as Richardson v Oracle Corporation Australia Pty Ltd  FCAFC 82 have set aside the long standing “conservative” approach to damages for sexual harassment, the process which victims must undertake in order to reach such a result has been criticised.
Given the reluctance of victims to report sexual harassment, the six month limitation period in which to make a complaint to the Australian Human Rights Commission (it differs in some States) is seen as too short.
Once the process begins, the first stage focuses on resolution by conciliation and can take months to resolve. This creates additional stress and may lead the complainant to leave their employment.
This has been compared to the anti-bullying process in the Australian Fair Work Commission. An employee can apply for an order to stop the bullying, if they are still employed.
Another avenue may be to report the lawyer for misconduct. For example, the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules include the following rule:
42. Anti-discrimination and harassment
42.1 A solicitor must not in the course of practice, engage in conduct which constitutes:
42.1.2 sexual harassment; or
42.1.3 workplace bullying.
A breach of the Rules is capable of constituting unsatisfactory professional conduct or professional misconduct and may give rise to disciplinary action. These rules do not apply in all States or New Zealand, however.
What should my firm be doing?
Firstly, make yourself aware of the law which applies and your duties under that law – including anti-discrimination law, work health and safety legislation and the applicable legal conduct rules. Find out what resources and support are offered by your Law Society or Bar Association.
Make sure that your firm has a gender-neutral policy on appropriate workplace behaviour. Think through the risks. What happens if two people in the firm develop a consensual relationship? Are senior lawyers permitted to develop relationships with junior staff? What risks exist when your firm holds social events? Do your staff feel safe to make a complaint or report conduct they have witnessed?
Sometimes employers believe they can’t take action unless the complainant wishes to “go on the record”. This is not necessarily the case. If you fail to manage a risk to health and safety caused by sexual harassment, you may be liable. There may be other action you can take such as relocation, supervision and monitoring.
Make sure that everyone is aware of the policy and attends relevant training. Discuss the developments with your staff and make your position clear. Changing attitudes and workplace culture takes time and effort.