SEXUAL HARASSMENT
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
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hilst 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
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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.
