Branson, Catherine --- "Editorial: Making the law safer for women" [2018] PrecedentAULA 1; (2018) 144 Precedent 2

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MAKING THE LAW SAFER FOR WOMEN

By Catherine Branson QC

In the wake of the recent Harvey Weinstein scandal, the subsequent #MeToo campaign and the more recent revelations of sexual harassment of women in Australian workplaces, this edition of Precedent on women and the law is timely. As is the case in virtually every male-dominated workplace, women continue to experience sexual harassment in the legal profession.

While the disclosures from and following the Weinstein scandal have been distressing, reactions to them suggest wide acceptance that the workplace belongs to women as much as it does to men: women as well as men are entitled to safe workplaces in which they are treated with respect.

This has not always been the case. When women of my generation entered the legal profession, sexual harassment was simply regarded as the price women paid for being allowed access to a workplace dominated by men. And we women somehow accepted that the problem was ours. We felt ashamed when subjected to unwanted sexual attention. We certainly didn’t seek to embarrass either the perpetrators or ourselves by drawing attention to it. If we were subjected to egregious harassment we didn’t complain, we resigned.

Although our profession today is more enlightened, we should be prepared for renewed criticism that it is still insufficiently proactive in ensuring the sexual safety of its younger members.

A particular responsibility rests with those who hold positions of influence, such as those who control the Law Council of Australia, the Law Societies and the Bar Associations. Should they commission a prevalence study of sexual harassment within the profession, broadly comparable with the study undertaken for Universities Australia? With the benefit of the results of such a survey, they could seek expert advice about what, if anything, should be done next.

Those in charge of law firms and other places where young lawyers are employed carry responsibility to provide a safe work environment. Are they are doing all they can? Do they have safe internal complaints procedures? What about when their staff leave the office? By way of example, while it may be better than nothing for an employer to warn a female solicitor that she should try to avoid being alone with a particular barrister, surely the preferable, and more principled, option is for the employer to cease briefing any barrister who it has reason to believe may pose a sexual threat to its staff? To help ensure that their solicitors enjoy a safe working environment, should those who control firms and offices that brief the bar seek feedback from their instructing solicitors, not only about the professional competence of the barristers they have retained, but also about the appropriateness of their personal behaviour?

Whatever the answer to the above questions, it is important to recognise the link between the status of women in the workplace and their personal safety. Everyone can play a part by calling out conduct that demeans a woman on the basis of her sex or which tends to reinforce stereotypical views of what women can or should be doing (or be paid). Too often women offended by unacceptable conduct find themselves facing passive aggression and are asked if they can’t take a compliment, or recognise a joke, or are told to ‘lighten up’. How much more powerful would it be if others took the initiative to challenge and deprecate such conduct; if others made it plain that conduct that demeans women is not acceptable within the profession: it is not a joke, or a compliment?

I do not believe that the profession is rife with sexual predators – but any number is too large. Nor do I suggest that only women are subject to sexual harassment.

And certainly I do not suggest that the legal profession needs to promote puritanical standards of behaviour. It is not hard to distinguish between harmless flirtation and sexual harassment. Well-meaning men and women are demonstrating this every day.

The Hon Catherine Branson QC is Chair of the Human Rights Law Centre and Deputy Chancellor of the University of Adelaide. She is a former judge of the Federal Court of Australia and former President of the Australian Human Rights Commission.