Sexual harassment in the legal profession
5th Apr 2018
WHAT IS SEXUAL HARASSMENT?
The Sex Discrimination Act 1984 (Cth) s28A (SDA) defines sexual harassment as making unwelcome sexual advances, unwelcome requests for sexual favours, or engaging in other unwelcome conduct of a sexual nature ‘in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated’. All of the states and territories have similar provisions.
SEXUAL HARASSMENT IN THE LEGAL PROFESSION
The Law Council of Australia’s (LCA) ‘National Report on Attrition and Re-engagement’ identified that 24% of female respondents reported having been sexually harassed in their current workplace in the legal profession compared with 8% of male respondents. This means that, in general, women lawyers are being sexually harassed at about the national rate for women of 25%.
Women at the bar, however, report experiencing discrimination on the basis of gender and sexual harassment at more than twice the rate of women in the profession generally, with 55% of women barristers indicating that they have been sexually harassed in the workplace.
The evidence is more than just statistical; senior women in the profession are putting their hands up and saying ‘me too’. On the SBS program Insight, Jane Needham, former President of the Bar Council of NSW, shared her story of having been sexually harassed by a judge when she was in her first few years at the bar.
The Australian Human Rights Commission’s (AHRC) 2012 report into sexual harassment in the workplace found that most people who experience harassment in the workplace do not report it. Similar findings are repeated in every study. Obviously, this is not because there are no mechanisms for dealing with workplace harassment – there are model conduct rules which make sexual harassment in the workplace professional misconduct, as well as statutory actions under anti-discrimination laws.
According to New Matilda, the NSW Bar Association has urged victims of sexual harassment to come forward. However, because ‘targets of sexual harassment often respond passively to the conduct…organisational approaches which rely exclusively on individual complaints made by targets of harassment are unlikely to be successful’. The Victorian case of GLS v PLP is illustrative: the Tribunal in that matter found that the complainant had compelling reasons for not being more forceful in her rejection of the respondent:
‘She did not want to upset Mr PLP or lose his support…He was in a position of authority and superiority…She certainly did not want to lose or fail to complete the placement which she had to complete to gain admission to practice.’
THE WAY FORWARD
Nearly all of the states and territories’ relevant professional associations have adopted the LCA’s model conduct rules for solicitors (the Rules). Sexual harassment is covered very briefly at 42.1.2 of the Rules. But professional misconduct rules need to be backed up with appropriate policies and processes.
Expecting women to report sexual harassment appears to have been ineffectual, as it appears to continue unabated. It appears that there is still little perceived benefit in reporting sexual harassment. This would seem to argue in favour of a structural approach to the problem, rather than expecting individuals to be responsible for the regulation of the profession by speaking up, often to their professional detriment, against professional misconduct like sexual harassment and victimisation.
If an AHRC Report is saying that 21% of university students are experiencing sexual harassment on campus and 100% of lawyers are university graduates, then it is at least arguable that university is the place to start changing the culture. Modules on gender discrimination and sexual harassment and the consequences of professional misconduct could be included in law courses.
The National Attrition and Re-engagement Study (NARS) Discussion Paper in 2014 made the following recommendations in relation to sexual harassment and bullying in the legal profession:
‘Law firms, bar chambers and Constituent Bodies should:
Combat bullying and sexual harassment
- communicate zero tolerance for bullying, harassment and discrimination.
- develop and promote clear and accessible written policies and guidelines and complaint processes to address gender discrimination, sexual harassment and bullying.
- develop and encourage participation in anti-bullying and harassment CPD programs.
- appoint and resource trained and skilled health professionals and expert human resources personnel to assist those wishing to report bullying, harassment and discrimination, and assist them to a satisfactory outcome.’
The NARS Report sets out a number of options for addressing the underlying causes of women lawyers’ attrition rate. Those same underlying causes provide the foundation for sexual harassment in the profession.
McDonald and Flood’s work on bystander interventions proposes that even though sexual harassment behaviour is often actively hidden by perpetrators and therefore not directly witnessed, bystander intervention can be critical to disrupting and changing a workplace culture that fosters sexual harassment and other gender-based forms of mistreatment.
Alternative business models as a means of increasing diversity in firms was one of the options proffered by the LCA in the NARS Report. Taking into account the apparent correlation between increased numbers of women in senior positions and a decrease in the incidence of sexual harassment, higher numbers of women in authority in firms should go some way towards minimising sexual harassment and other forms of misconduct.
Given the link between hierarchical, male-dominated workplaces or professions and the incidence of sexual harassment, an increase in alternative legal services and so-called ‘NewLaw’ type firms is to be welcomed. Organised differently to traditional hierarchical ‘BigLaw’ firms, these alternatives offer a competing career option to women and put pressure on traditional firms to ‘buck up’.
The #metoo phenomena and the Harvey Weinstein effect have been integral to the current rise in public awareness surrounding sexual harassment in the workplace. Whether or not that public interest is reflected in positive change remains to be seen. At any rate, the work of the LCA and the AHRC over the last five years has given the legal profession enough tools to start bringing about a change, and result in a more diverse legal profession where equality is a fact and not just a fantasy.
This is an edited version of an article that was published in full in the Jan/Feb 2018 edition of Precedent focusing on women and the law.
Adrienne Morton is Manager Legal Support for the Tasmanian Department of State Growth. She is President of Tasmanian Women Lawyers and Treasurer of Australian Women Lawyers.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
 Discrimination Act 1991 (ACT), s58; Anti-discrimination Act 1977 (NSW), s22A; Anti-discrimination Act (NT), s22; Anti-discrimination Act 1991 (QLD), s119; Equal Opportunity Act 1984 (SA), s87; Anti-discrimination Act 1986 (TAS), s17; Equal Opportunity Act 2010 (Vic), s92; Equal Opportunity Act 1984 (WA), s24.
 Law Council of Australia, National Attrition and Re-engagement Study (NARS) Report (2014), 32.
 AHRC, Working without Fear: Results of the Sexual Harassment National Telephone Survey, (2012) 4 <https://www.humanrights.gov.au/our-work/sex-discrimination/publications/working-without-fear-results-sexual-harassment-national>.
 Insight: Where do women draw the line on sexual harassment in the workplace? (Produced by Kyle Taylor, SBS Australia, 24 October 2017).
 See above note 3, 40.
 Law Council of Australia, Australian Solicitors Conduct Rules (at 24 August 2015).
 ‘NSW Bar Urges Victims of Sexual Harassment to Come Forward’, New Matilda (online), 26 October 2017, <https://newmatilda.com/2017/10/26/nsw-bar-association-urges-victims-of-sexual-harassment-to-come-forward/>
 P McDonald and M Flood, ‘Encourage. Support. Act! Bystander Approaches to Sexual Harassment in the Workplace (2012)’, AHRC, 5.
  VCAT 221 (13 March 2013) at 226-30.
 The Law Society of Tasmania has only recently resolved to adopt the Model Conduct Rules although it will be some time before they are enacted as statutory rules. The Northern Territory is yet to adopt the Rules.
 AHRC, Change the Course: National Report on Sexual Assault and Sexual Harassment at Australian Universities, (2017) 18-9.
 Law Council of Australia, National Attrition and Re-engagement Study (NARS): Discussion Paper March 2014.
 See above note 2, pt 7.
 See above note 9, pts 3 and 4.
 See above note 2, 91.
 See above note 2, 12.
 ‘NewLaw’ was a term coined by Eric Chin in 2013 to describe ‘disruptors’ in the legal landscape, as opposed to the traditional firm structure or ‘BigLaw’ firm (itself a term coined by Dr George Beaton).