reBriefed this article originally appeared in our October 2021 edition
Change the Culture is Here By Áine Whelan
General Manager Marketing, Business Development and Community Engagement, The Law Society of Western Australia
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exual harassment is under the spotlight like never before, but how do we effect change and shift a culture that allows it to flourish? Understanding that sexual harassment is everyone’s business is a good starting point. Sexual harassment doesn’t just affect some of us or others i.e., victims, it affects everyone. Trauma on victims and bystanders, impact on effectiveness and productivity, poor stakeholder relations and subsequent economic fallout are all symptoms of the effects. Sexual harassment is an issue of gender inequality, power imbalance and the abuse of power in the workplace, giving rise to unsafe and toxic work environments. To quote the Sexual Discrimination Commissioner, Kate Jenkins, we need to “shift from the current reactive model that requires complaints from individuals, to a proactive model, which will require positive actions from employers. Ultimately, a safe and harassmentfree workplace is also a productive workplace”1. I would advocate positive actions from colleagues as well to shift from reactive to proactive. The definition of sexual harassment according to the Australian Human Rights Commission (AHRC) is “Any unwelcome or offensive sexual behaviour that is repeated, or is serious enough to have a harmful effect, or which contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment. Sexual harassment can involve spoken, or written material, images, digital material or a physical act” Sexual harassment in the workplace has been prohibited since the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) was introduced 37 years ago and is unlawful under antidiscrimination legislation at the federal level and in all Australian State and Territory jurisdictions. And yet, laws alone are only part of the picture. Sadly, the evidence indicates that sexual harassment is alive and well despite legislation. Taking the most recent survey results from Western Australia, conducted by Women Lawyers WA in 2019 with over 500 responses, this is what we know2:
72% of those surveyed had experienced sexual harassment in the workplace.
National inquiry into Sexual Harassment in Australian Workplaces, Respect@Work: 2020 - (AHRC).
The most common type of harassment was lewd jokes or suggestive comments.
Us Too? Bullying and Sexual Harassment in the Legal Profession 2019 – International Bar Association.
Almost 95% of respondents stated their harasser was male.
Sexual Harassment in the Victorian Legal Sector 2019 – Victorian Legal Services Board + Commissioner.
85.64% did not address the issue with the harasser.
WLWA Sexual Harassment Survey and Submission to ALRC 2019 Women Lawyers Western Australia.
Only 7.73% addressed the harassment by making a formal complaint. Research conducted throughout Australia in the last few years clearly demonstrates consistent trends in sexual harassment, including that 90% of harassers are male, predominantly over the age of 40 and in a senior role in an organisation. Around one in three (36%) legal professionals said they had personally experienced sexual harassment at work with women significantly more likely to experience sexual harassment than their male counterparts (61% compared to 12% respectively). Most incidents of personally experienced sexual harassment went unreported (81%). Four in five (80%) stated it was easier to keep quiet.3 The AHRC national inquiry into Sexual Harassment in Australian Workplace in 2019 includes the following findings4:
Seven Strategies for Addressing Sexual Harassment in the Legal Profession 2019 - Australian women Lawyers. All the above reports indicate a high occurrence of sexual harassment in the legal profession, the majority of victims are female, there are high levels of bystanding behaviour and non-reporting and most importantly, low levels of trust in the system and processes to respond adequately to claims.
Sexual Harassment in the Workplace 2021 - Clayton Utz, commissioned by the Australian Institute of Company Directors.
As the peak advocacy body for the legal profession in Western Australia, the Law Society responds to issues locally and nationally on a regular basis. In its statement to the WA legal profession on sexual harassment in 2020, the Law Society stated there is no place for sexual harassment in any profession, any workplace. Sexual harassment is both unlawful and entirely unacceptable. On a national level, the Law Society supports the Law Council of Australia’s (LCA) advocacy on sexual harassment and provided a submission to the LCA on reformulating Rule 42 of the Australian Solicitors Conduct Rules (the anti-discrimination and harassment rule). The Law Society also contributed to the LCA’s submission on the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 which implements some (but not all) of the recommendations from the Respect@ Work Report, making amendments to the laws that currently exist under the Sex Discrimination Act, the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth).
Review of Harassment in the South Australian Legal Profession 2021 – Report by the Equal Opportunity Commission to the Attorney-General.
The Law Society is also actively involved in consultations on the LCA’s National Model Policy on Sexual Harassment and on a state level is preparing a submission
More than half of respondents reported they had not received training or information at their current workplace about sexual harassment. The most common type of sexual harassment experienced was “lewd jokes or suggestive comments” (77.95%). Less than 10% of those experiencing harassment addressed it by making a formal complain. The following reports provide valuable evidence and compelling arguments for change:
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