Sexual harassment in the workplace: Make it your business to make sure it’s not in your business - By Marissa Mackie & Leah Marrone

Sexual harassment in the workplace: Make it your business to make sure it’s not in your business

MARISSA MACKIE, CHAIR, WOMEN LAWYERS COMMITTEE & LEAH MARRONE, MEMBER, WOMEN LAWYERS COMMITTEE; VICE-PRESIDENT, AUSTRALIAN WOMEN LAWYERS

Whilst it has been prevalent in the media recently, we know sexual harassment in the legal profession is not new. We all know about it, we have seen or heard about it, from the media, from a number of reports, 1 but for so many reasons we still don’t really talk about it and it is becoming increasingly evident that many still do not understand exactly what behaviour constitutes sexual harassment.

We know that victims do not come forward to report conduct as they are often ostracised for doing so or warned that this will happen. In the long term addressing sexual harassment in the workplace and profession will require determined cultural change, realising gender equality in the workplace, and addressing power imbalances.

We know this is going to take time and a lot of work. We have been working on it for years. It will be slow and sometimes that distracts us, thinking it is all too hard but there are small changes that we can take now that will have immediate benefit and chip away at that end goal.

A lot of firms, especially the larger ones, have existing policies in place in an attempt to deal with all types of harassment in the workplace. You may have seen your firm’s policy as part of your induction, but have you ever seen it since? Do you even know it exists or where to go for help if a situation arises?

Having a no-tolerance policy against bullying and sexual harassment is one thing, ensuring its effectiveness is another. So, what can you do to make those changes and create a workplace culture that is inclusive and safe, where a no-tolerance attitude to harassment is ingrained in all staff?

Australian Women Lawyers Ltd. has published a policy paper identifying seven strategies for addressing sexual harassment in the legal profession which provides practical guidance for employers and the profession generally. 2 We have expanded on some of these strategies below in providing some tips for firms in reviewing their policies and giving practical effect to them.

Workplace policies

• Be clear and transparent on the consequences for perpetrators. There is no point in a small slap on the wrist, or if the person’s conduct will be overlooked because they are a high fee earner. • Consider the effectiveness of bystander policies, if you have one, to provide mechanisms and a requirement for staff to report poor behaviour if they see it happening. 3 • Provide a confidential complaints mechanism which enables both complainants and bystanders to report incidents of bullying and sexual harassment. • Have a trauma-informed approach for complaints, one aspect of this is ensuring that they do not have to re-tell their story on multiple occasions. • Provide a mechanism that encourages staff who may have concern that they acted inappropriately to raise these issues and seek guidance. • Ensure that any grievance processes seek to reinforce consequences for the perpetrator. • Do not simply try and ‘fix’ the problem by re-assigning the victim to a different area of the firm. They should not be punished. • Consider whether the use of nondisclosure terms in resolution are indeed appropriate or whether greater transparency is necessary to show staff what is and isn’t appropriate. We consider non-disclosure agreements are generally only appropriate only where the complainant requests them, or perhaps having an agreement to not disclose settlement sum, but where the substance of the complaint, and behaviour alleged, can be discussed. Consider other policies, including those relating to events outside of the workplace, including networking events and parties.

Training

A survey conducted as part of the International Bar Association’s (IBA) Report ‘Us Too? Bulling and Sexual Harassment in the Legal Profession’ 4 illustrated that those who received training in their workplace were ‘significantly less likely to have been bullied or sexually harassed…’.

The introduction of a mandatory CPD unit in bullying and sexual harassment is a step in the right direction, but for this training to have any effect it needs to be practical and not simply an overview of the legislation.

Many people are unclear about what conduct can amount to sexual harassment. It is not limited to the blatant examples we have seen in the media; it can be as simple as a remark about someone’s appearance. Consider developing hypothetical and interactive scenarios to really gauge whether your staff can identify what amounts to sexual harassment, what they would do about it as a victim or a bystander, if they know where they can go to speak to someone for support either within the organisation or externally.

Training should also address issues of unconscious bias and underlying gender inequity.

Reporting

Be aware of what is going on in your workplace. Reporting provides some an opportunity for the profession to monitor what is going on and the nature of complaints. Depending on the size of the firm, it may not be practical to conduct reporting internally but can become a part of the ongoing dialogue with staff about what has been reported in the profession generally.

Employee declarations and performance reviews

Employees are often required to make a number of declarations when commencing at a new firm including noncompete clauses. You may only see it as a little thing but you could encourage your employees to sign a declaration (ideally on a yearly basis) that they are aware of their obligations under relevant legislation and the conduct rules. You could make it a part of ongoing performance reviews.

Talk about it

Dealing with harassment requires an ongoing dialogue. Fear of retribution and professional consequences is clearly a factor which weighs on complainants and bystanders. Reducing the stigma associated with reporting misconduct, either by a victim, a bystander or the perpetrator themselves, is key. By talking openly about it, people feel the confidence to speak up. It also ensures the problems with bullying and sexual harassment remain at the front of our minds. Check in with staff about whether they feel safe, consider this especially at work social events.

Small Firms

Smaller or boutique firms may think there is no practical way to implement policies within their practices. We understand it can be more difficult, but it is not impossible. There are a number of services available to support smaller firms and their employees, whether it be through setting up an arrangement with an independent third party who can field inquiries or simply ensuring your employees are aware of the existing services available.

Support Services

The Law Council of Australia 5 is working closely with its constituent bodies to develop a resource hub to assist firms and the Law Society of South Australia is also updating its website to facilitate accessing relevant guidelines with ease. 6

Members of the Women Lawyers Committee of the Law Society and other professional bodies such as the Women Lawyers Association of SA 7 are more than happy to field enquiries to support firms in developing their policies and training, to provide referrals to various bodies that can assist in navigating sexual harassment complaints, especially for those smaller firms where it may be difficult for people to report.

If your employees do not have access to an EAP service, get one. If that is not practical, ensure your staff are aware of the many support services available through the Law Society and other organisations.

Benefits

The effect of harassment (both sexual and other types of discrimination) are felt across the profession. It can lead to staff disengagement and higher attrition levels. In some cases, practitioners become so disengaged that they leave the profession completely.

The benefits of appropriately addressing and dealing with sexual harassment are endless. Not only will it reduce the likelihood of this conduct occurring in the future, but it will assist practitioners to feel more comfortable at work resulting in greater morale, increased productivity and higher retention rates. Firms will more likely be seen as employers of choice, attracting quality employees and, in turn, new clients. We look forward to the day where the secret whispers of ‘make sure you’re not alone late at night with such and such’ are finally gone. B

Endnotes 1 International Bar Association, Us Too? Bullying and Sexual Harassment in the Legal Profession (2019) https://www.ibanet.org/bullying-andsexual-harassment.aspx; Law Society of South

Australia, ‘Survey results trigger action plan to make workplaces safer’, Bulletin (Law Society of Australia), Vol 41, No 11, December 2019, 24-25 https://www.lawsocietysa.asn.au/pdf/

LSB_December_2019_survey.pdf; Australian

Human Rights Commission, Respect@Work:

Sexual Harassment National Inquiry Report (2020) https://humanrights.gov.au/our-work/sexdiscrimination/publications/respectwork-sexualharassment-national-inquiry-report-2020. 2 https://australianwomenlawyers.com.au/ wp-content/uploads/2019/07/Seven-Strategiesfor-addressing-Sexual-Harassment-in-the-Legal

Profession-AWL-9-July-2019.pdf. 3 For more details on bystander responsibilities see https://womenlawyersnsw.org. au/wp-content/uploads/2020/07/

SexualHarassmentMeasures_R.pdf. 4 https://www.ibanet.org/bullying-and-sexualharassment.aspx at p 101. 5 https://www.lawcouncil.asn.au/policy-agenda/ advancing-the-profession/equal-opportunitiesin-the-law/bullying-and-harassment-in-theworkplace. 6 https://www.lawsocietysa.asn.au/Public/

Lawyers/Practitioner_Support/Bullying_

Discrimination_Harassment. 7 https://www.womenlawyerssa.org.au/.