Change the Culture is Here - Addressing Sexual Harassment in the Workplace

By Áine Whelan

General Manager Marketing, Business Development and Community Engagement, The Law Society of Western Australia

Sexual 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 know 2 :

- 72% of those surveyed had experienced sexual harassment in the workplace.

- The most common type of harassment was lewd jokes or suggestive comments.

- Almost 95% of respondents stated their harasser was male.

- 85.64% did not address the issue with the harasser.

- 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 findings 4 :

- 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:

- Sexual Harassment in the Workplace 2021 - Clayton Utz, commissioned by the Australian Institute of Company Directors.

- Review of Harassment in the South Australian Legal Profession 2021 – Report by the Equal Opportunity Commission to the Attorney-General.

- National inquiry into Sexual Harassment in Australian Workplaces, Respect@Work: 2020 - (AHRC).

- Us Too? Bullying and Sexual Harassment in the Legal Profession 2019 – International Bar Association.

- Sexual Harassment in the Victorian Legal Sector 2019 – Victorian Legal Services Board + Commissioner.

- WLWA Sexual Harassment Survey and Submission to ALRC 2019 - Women Lawyers Western Australia.

- 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.

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).

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 to the Discussion Paper released by the WA Law Reform Commission on our own outdated Equal Opportunity Act.

What is clear, laws and legislation alone are not a panacea to deterring unacceptable sexual harassment in the workplace. We must apply a strategic approach to addressing factors and work cultures that allow it to happen. The Law Society in reflecting on this has developed a strategic approach through four pillars under the call to action Change the Culture.

Change the Culture offers tools and training under four key pillars:

1. The Evidence: Recent research data which sets out the facts about sexual harassment and bullying in the legal profession and supports a call for change within the legal profession.

2. Behavioural Change: Tailored training for individuals and law firms to undertake as a means of taking action to shift the culture.

3. Systems and Procedures: Tools to support positive work cultures in response to sexual harassment.

4. Confidential Support: Support mechanisms for individuals impacted by sexual harassment and bullying.

This four-pronged holistic approach requires each pillar to be activated and used in order to have an impact on culture and the systemic issues around workplace sexual harassment.

This article will focus on the behavioural change component of the above Law Society strategy. The Law Society is offering two different training avenues to encourage open and safe conversations, motivate people to think about the holistic effect of workplace sexual harassment and examine their role in responding to and promoting a positive work culture.

A suggestion for training with a difference came from the Joint Law Society Women Lawyers Committee (JLSWL) of the Law Society on recommendation from committee members Charmaine Tsang and Libby Fulham. Both had seen Equal Opportunity Specialists (EEO) present an interactive live theatre training environment which had strong resonance with audiences. The Society and The College of Law agreed to work with the

EEO to deliver a similar event which we called What’s Our Story? Its strength is the live interactive dramatisation of sexual harassment in a legal workplace guided by the expert facilitator Franca Sala Tenna, Director of EEO. Professional actors played convincing characters in a legal workplace, with the script developed in partnership with the Law Society and local teaching staff and alumni from the WA College of Law. The audience played a vital part with opportunities to interact with the characters and the facilitator, to call out poor behaviour, reflect on the issues and change the narrative. The event in August was received very favourably with a feedback survey stating that 70% of respondents will definitely promote What’s Our Story? to others and 89% believing it is extremely important for as many people as possible from the legal profession to have access to sexual harassment training. As a result of the overwhelmingly positive response, the Law Society and The College of Law are looking to develop the concept with Equal Opportunity Specialists further so that others in the legal profession get to experience this memorable training.

Catherine Stokes, BA LL.B (Hons.) Executive Director, The College of Law (WA) and Accredited Mental Health First Aid Instructor

Having been approached by senior members of the legal community to provide the necessary support for this training, the College of Law WA invested heavily in terms of financial support, time and resources to enable this event to take place.

The College of Law believes that training needs to be accessible, contemporary, credible and practical. For that reason, the College utilised the experience of its extensive local practitioner teaching team, together with College alumni from a wide range of legal workplaces to contribute to the development and delivery of What’s Our Story?

The International Bar Association (IBA) and The College of Law have recently collaborated to develop a set of free e-learning modules designed to assist individuals and organisations make the changes recommended by the 2019 landmark report Us Too? Bullying and Sexual Harassment in the Legal Profession. This free training is available now from the IBA website and is designed to guide individuals and workplaces towards making positive cultural change.

Neville Carter, Chief Executive Officer of The College of Law, said:

“Bullying and sexual harassment have no place in any profession.

We are committed to providing our sector with the support it needs to improve its culture and practices. The 2019 report emphasised that frequent, high quality training is needed to address inappropriate workplace behaviours, which is why The College of Law is making the modules we have developed in collaboration with the IBA free for all individuals and organisations.”

In addition to the above training, the Society is also delivering a training initiative licensed from the Queensland Law Society which is an Australian first legal industry training resource. Called Change the Culture – Addressing Sexual Harassment in the Workplace, this training utilises simulated scenarios of real events in a legal environment gathered from research. The training is interactive, structured over six chapters incorporating four video resources which address real life stories. Standout takeaways from this training are:

- Awareness of predominant traits and culture of the legal profession which drives poor culture

- Understanding bystanders and the 5Ds in becoming an Active Bystander

- Understanding the importance of policies and procedures to deal with sexual harassment

- Valuing the role of leadership in modelling positive workplace behaviour

Training at the Law Society and at law firms on request, is being delivered by two trained and respected facilitators, Margie Tannock and John Poulsen.

Margie Tannock ESG Legal

“I have long been committed to an inclusive, supportive work environment to encourage the best in the practice of law. I am very pleased to be involved in this important initiative by the Law Society of WA, to deliver better integrity, transparency and accountability in identifying illegal and inappropriate behaviour in law firms.”

Margie is an experienced senior lawyer, recently concluding 10 years as a partner of a global law firm. She now runs her own practice, ESG Legal, focussing on key strategic issues for clients in environmental, social and governance challenges. Margie advises clients on corporate governance and project development and works closely with clients to resolve regulatory risk across all aspects in corporate decision making, especially relating to major projects, climate change management and land access authorisations.

John Poulsen People Passion Performance

“I am passionate about mental wellbeing in the workplace, which to me is all about creating an environment of trust and living values. Sexual harassment in

the workplace is the antithesis of this. I want to help to make a difference and providing training on sexual harassment to the legal profession is one way I can do that.”

John is the Principal of People, Passion & Performance and has deep ‘hands on’ experience in creating and developing workplaces where people have a shared vision and purpose, are fully motivated, engaged and empowered. From 2006 to 2017, John was the Australian Managing Partner and CEO of Squire Patton Boggs (initially as Managing Partner of Minter Ellison Perth), a top 10 Global Law Firm and led the firm to be one of the fastest growing law firms in Australia.

Since the introduction of the Sex Discrimination Act 1984, the rate of change has been at such a slow pace that Australia has now fallen behind global trends in addressing and responding to sexual harassment . The Society recognises that the majority of those in the legal profession hold their professionalism and behaviour to high standards, however it is unfortunate that poor workplace behaviour and sexual harassment still prevails to the detriment of the whole profession. The conversations and feedback from the Society’s training events are helping shape conversations and action for much-needed improvement.

To finish with a quote from our previous President, Jocelyne Boujos, in her closing statement for What’s Our Story? “I invite you all to be part of Change the Culture, because sexual harassment in the workplace is everyone’s responsibility, together, top down, bottom up, we will be the powerful agents of change”.