FEATURE
Equal Opportunity Commission report makes several recommendations to address harassment in the profession
T
he Equal Opportunity Commission’s Report on its Review into Harassment in the legal profession was released on 20 April.
PREVALENCE OF HARASSMENT IN THE PROFESSION The report “confirmed that sexual and discriminatory harassment was prevalent in the legal profession”, and made 16 recommendations to address this serious problem. The Commission received more than 600 responses to its survey, interviewed 16 participants and received 18 written submissions. Forty-two per cent of respondents to the survey indicated that they had suffered sexual or discriminatory harassment, with one-third of respondents reporting that they experienced such harassment more than once. Of the respondents who identified as female, 56.6% said they had experienced sexual harassment in the legal profession, while 13.6% of male respondents also reported experiencing sexual harassment. The most prevalent types of sexual harassment were sexually suggestive comments or jokes, inappropriate staring or repeated physical proximity, intrusive personal questions, and inappropriate physical contact such as unwelcome touching, hugging, patting, or brushing up against the body. Seven respondents reported that they were victims of sexual violence or sexual assault. Some 80% of victims reported that the perpetrator of the harassment was in a position of seniority in comparison to the victim. With regards to discriminatory behaviour, the survey indicated that the most common attributes for which people received unfavourable treatment were related to a person’s gender, age, and/or caring responsibilities. The results of the Commission’s survey broadly reflect the results in the Society’s 2018 survey of bullying, harassment and discrimination in the SA profession.
20 THE BULLETIN May 2021
KEY DRIVERS OF HARASSMENT The EOC’s report identified the following key drivers of harassment in the profession: • a patriarchal and hierarchical culture characterised by intense competition • a lack of cultural diversity, particularly in relation to people identifying as Aboriginal and / or Torres Strait Islander • deeply entrenched gender bias that underpins discriminatory behaviour • a ‘culture of silence’ whereby instances of harassment are minimised, normalised and kept quiet.
STRENGTHENING OUR WORK HEALTH & SAFETY FRAMEWORK The Report identified that legal workplaces needed to have systems in place aimed at reducing the risk of sexual harassment. This was critical in driving a respectful workplace culture that bears no tolerance for harassment of any kind. The report noted that while work health and safety (WHS) laws already impose duties on Persons Conduction a Business or Undertaking (PCBUs) to eliminate work health and safety risks, they were primarily being utilised to address physical risks. In the Commission’s view, the profession should better utilise the WHS framework to deal with workplace harassment. According to the report “a significant barrier to using the WHS framework to address harassment is that there is a cultural and institutional emphasis on WHS laws addressing physical risks and harm.” The report submits that WHS policies do not, generally speaking, give enough attention to psychological risks. In this regard the report endorses the Australian Human Rights Commission’s Respect@Work Report’s recommendation that the WHS framework be amended to deal with how to identify psychological risks and take appropriate measures to manage those risks. The EOC Report recommended that PCBUs in the legal profession review,
and where necessary, update policies, procedures and processes to eliminate or ameliorate, as far as practicable, risks of harm arising from harassment. This includes developing work health and safety systems that expressly deal with risks of psychological harm.
A BETTER SYSTEM FOR SUPPORTING COMPLAINANTS The Report recognised that making improvements to current complaints mechanisms were not going to solve the problem of sexual harassment, but it did identify shortfalls within the current complaints framework that, if addressed, would empower more victims to speak out and lead to more just outcomes. However, the report concluded there was no justification in establishing a new, independent complaints body, noting there were “already numerous reporting and complaints avenues available”. Instead, it recommended making changes to current complaints bodies. The report notes that there was generally a high awareness of the various bodies that could deal with harassment complaints, however the problem was a lack of trust that going to a complaints body would yield a satisfactory outcome. A number of respondents also expressed confusion about how the complaints bodies operate, and how to determine the most appropriate avenue of making a complaint. To address the lack of engagement with existing complaint mechanisms, the report recommended changes to the Office of the Legal Professional Conduct Commissioner (LPCC), including: • Expanding the current complaints mechanisms within the LPCC to include two full-time investigative solicitors • Providing for a dedicated enquiries officer within the LPCC to be the first port of call for victims seeking information and support, and to conciliate complaints made to the LPCC. • Provide LPCC with powers to conduct compliance audits and issue practice management directions
