Morton, Adrienne --- "Sexual harassment in the legal profession" [2018] PrecedentAULA 9; (2018) 144 Precedent 34

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SEXUAL HARASSMENT IN THE LEGAL PROFESSION

By Adrienne Morton

At the time of writing, the English-speaking world has somehow managed to be shocked at the ubiquity of sexual harassment in the workplace. The unfolding drama has claimed the scalps and reputations of sports stars, Hollywood moguls, British Cabinet ministers, and Sydney barristers. The prevalence of sexual harassment in the workplace is, yet again, making front page news. The headlines are filled with famous names, but the reality for the 25 per cent of Australian women who have indicated that they have suffered sexual harassment in the workplace (or the countless others who have witnessed it), sexual harassment is part of the daily pattern of their lives, and they negotiate it in much the same way as they navigate other seemingly inherent risks of being a woman in what is still a man’s world.

One cannot discuss sexual harassment in the legal profession without discussing its faithful companions; bullying, intimidation and discrimination on the basis of gender. Where women report higher levels of one, they report higher levels of the other behaviours too.^[1]

It is reasonable at this point to note that not all victims of sexual harassment are women and not all harassers are men. However, according to the Australian Human Rights Commission (AHRC), which has produced numerous reports over the last 25 years, 80 per cent of sexual harassers are men^[2] and the majority of their victims are women. In strictly hierarchical professions like medicine and the law, men are more likely to be in positions of structural advantage over women, controlling access to limited social goods like opportunity and advancement and wielding structural power like seniority, reputation and authority. Women working in firms with 40 per cent or more of senior positions held by women were less likely to report having been sexually harassed, bullied or intimidated in the workplace than those with fewer than 25 per cent of women in senior positions.^[3]

In 2015, the Law Council of Australia (LCA) found that women made up 61 per cent of recently admitted solicitors but continue to be under-represented in senior positions.^[4] These statistics are supported by the Workplace Gender Equality Agency’s findings in relation to equality in the legal services industry generally – that while nearly 70 per cent of those employed in the legal services industry were female, they held fewer than 6 per cent of the industry’s CEO positions.^[5]

WHAT IS SEXUAL HARASSMENT?

The Sex Discrimination Act 1984 (Cth) (SDA) defines sexual harassment as making unwelcome sexual advances, unwelcome requests for sexual favours, or engaging in other unwelcome conduct of a sexual nature ‘in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated’.^[6] All of the states and territories have similar provisions.^[7]

Sexual harassment is not about sex as such. Where people report sexual harassment, they often also report non-sexual mistreatment as well.^[8] So any measures that focus solely on sexual behaviour without addressing gender discrimination and unconscious bias are missing the point.

Sexual harassment not only affects the person harassed. McDonald and Flood suggest that women working in environments hostile to women, where sexual harassment is tolerated, ‘can experience similar negative impacts to those women who are actual targets of sexual harassment’.^[9]

Sexual harassment is not only undesirable, but it and other intimidating behaviours also present a risk to employers:

• The LCA’s National Report on Attrition and Re-engagement Study (NARS) Report shows that when sexual harassment is prevalent, bullying, intimidation and gender discrimination also occur at a higher rate.^[10]

• Sexual harassment is expensive, it negatively affects employee turnover and morale, as well as leading to absenteeism. Not to mention the cost of responding to complaints and the damage it can do to a lawyer or firm’s reputation.^[11] For instance, barrister Charles Waterstreet was banned from advertising in the Sydney University’s employment hub for staff as a direct consequence of allegations of sexual harassment made against him by former employees.^[12]

• Sexual harassment is not just an interpersonal issue. An employer may be vicariously liable for sexual harassment. See, in particular, s106 of the SDA.^[13]

• An employer may be liable even when the harassment occurred in a workplace not subject to their direct control and at the hands of someone not in their employ. The decision in Elliott v Nanda & the Commonwealth^[14] found an employment agency liable for sexual harassment as an accessory, even though it had no control over the workplace that the worker was sexually harassed in – it had notice of the risk of sexual harassment in the relevant workplace because workers previously placed there had complained about the doctor in question.

• The scope of the employment relationship was explored in GLS v PLP (Human Rights).^[15] In that matter the respondent attempted, unsuccessfully, to argue that the complainant was not an employee. The respondent was found to be the employer and harasser of the complainant, who was an intern doing the practical legal training component of her Graduate Diploma of Legal Practice with the firm. . The Tribunal ordered the respondent to pay $100,000.

• In Legal Services Commissioner v SH Nguyen,^[16] a barrister was disciplined and ordered to pay $30,000 for unacceptable behaviour, albeit falling short of professional misconduct. It should be noted that he was also convicted of criminal charges in relation to the behaviour.

• The 2014 case of Richardson v Oracle^[17] is the benchmark case in sexual harassment. The Full Court of the Federal Court of Australia awarded $130,000 compensating not just for the injury suffered but also economic loss and reputational damage. The case represented a dramatic increase in the size of orders made in sexual harassment cases.

GENERAL PREVALENCE

Sexual harassment is not necessarily something that lawyers learn on the job. The AHRC’s report into sexual harassment and assault on university campuses, ‘Change the course: National report on sexual assault and sexual harassment at Australian universities: 2017’ found that 21 per cent of students reported having been sexually harassed in university settings, excluding travel to and from university. Female students were three times more likely than male students to have been sexually harassed. Of those who reported having been harassed at university, 94 per cent did not report the harassment.^[18]

According to the ABC at the time of writing, Australia’s Sex Discrimination Commissioner, Kate Jenkins, is about to launch the AHRC’s latest survey of sexual harassment in the workplace, the first since 2012.^[19] The AHRC has conducted a survey on sexual harassment every five years.

SEXUAL HARASSMENT IN THE LEGAL PROFESSION

The LCA’s ‘National Report on Attrition and Re-engagement’ identified that 24 per cent of female respondents reported having been sexually harassed in their current workplace in the legal profession compared with 8 per cent of male respondents.^[20] This means that, in general, women lawyers are being sexually harassed at about the national rate for women of 25 per cent.^[21]

The 2012 Victorian Equal Opportunity and Human Rights Commission report into the experience of women in the Victorian legal profession found that 23.9 per cent of female respondents indicated that they had been sexually harassed at some point in their legal career, either as an articled clerk or practitioner.^[22] Although it is hard to draw conclusions from the relationship between national data and state-based data gathered four years previously, it does seem to suggest that in the ensuing four years between the Victorian report and the LCA report nothing has really changed in the legal profession. However, given the record numbers of women in senior positions within the Victorian legal profession, maybe the work of the Victorian Equal Opportunity Office and Law Institute of Victoria is paying dividends. It will be interesting to see the results of future surveys.

Women at the bar, however, report experiencing discrimination on the basis of gender and sexual harassment at more than twice the rate of women in the profession generally, with 55 per cent of women barristers indicating that they have been sexually harassed in the workplace.^[23]

The evidence is more than just statistical; senior women in the profession are putting their hands up and saying ‘me too’. On the SBS program Insight, Jane Needham, former President of the Bar Council of NSW, shared her story of having been sexually harassed by a judge when she was in her first few years at the bar.^[24] Her story was particularly shocking, given that she had to appear before that judge the following Tuesday.

Anecdotal evidence suggests that sexual harassment in the legal profession is not just perpetrated between lawyers but that the sexual harassment and victimisation of administrative staff and paralegals is rife.^[25] Research suggests that employees are frequently aware of which of their male co-workers sexually harass women in the workplace.^[26]

There is a disconnect between the number of women lawyers who report having been sexually harassed or assaulted in the workplace and the number that pursue formal redress against the men who harass them. The ARHC’s 2012 report into sexual harassment in the workplace found that most people who experience harassment in the workplace do not report it.^[27] Similar findings are repeated in every study. Obviously, it is not because there are no mechanisms for dealing with workplace harassment – there are model conduct rules which make sexual harassment in the workplace professional misconduct, as well as statutory actions under anti-discrimination laws.^[28]

According to New Matilda, the NSW Bar Association has urged victims of sexual harassment to come forward.^[29] However, because ‘targets of sexual harassment often respond passively to the conduct... organisational approaches which rely exclusively on individual complaints made by targets of harassment are unlikely to be successful’.^[30] The Victorian case of GLS v PLP^[31] is illustrative: the Tribunal in that matter found that the complainant had compelling reasons for not being more forceful in her rejection of the respondent:

‘She sought to manage an unwanted situation. She did not want to upset Mr PLP or lose his support. He was her employer and the principal of the firm for which she worked. He was in a position of authority and superiority. He was her supervisor and responsible for oversight of her placement. She certainly did not want to lose or fail to complete the placement which she had to complete to gain admission to practice. She was an older age student, and placements were not all that easy to come by, despite her network of contacts.’

According to the NARS report, while sexual harassment occurs in all sectors and seemingly at all levels of the profession, it is not evenly distributed. Barristers are more at risk than solicitors. Women lawyers in medium- to large-sized firms are more likely to report experiencing sexual harassment than those at small firms. Certain structural factors are prophylactic; for instance, the more women in a firm, and the more senior positions that women hold, the less likely it is that employees in that firm will be sexually harassed. Firms in CBDs are more likely to have higher rates of sexual harassment than those in large regional centres which, in turn, are worse off than those in small regional centres. Those in private practice experience sexual harassment in greater numbers than those in in-house and government roles.^[32]

THE WAY FORWARD

Nearly all of the states and territories’ relevant professional associations have adopted the LCA’s model conduct rules for solicitors (the Rules). Sexual harassment is covered very briefly at 42.1.2 of the Rules.^[33] But professional misconduct rules need to be backed up with appropriate policies and processes.

Expecting women to report sexual harassment appears to have been ineffectual – sexual harassment appears to continue unabated. It appears that there is still little perceived benefit in reporting sexual harassment. This would seem to argue in favour of a structural approach to the problem, rather than expecting individuals to be responsible for the regulation of the profession by speaking up, often to their professional detriment, against professional misconduct like sexual harassment and victimisation.

If the AHRC Report is saying that 21 per cent of university students are experiencing sexual harassment on campus and 100 per cent of lawyers are university graduates, then it is at least arguable that university is the place to start changing the culture. Modules on gender discrimination and sexual harassment and the consequences of professional misconduct could be included in law courses.

The NARS Discussion Paper^[34] in 2014 made the following recommendations in relation to sexual harassment and bullying in the legal profession:

‘Law firms, bar chambers and Constituent Bodies should:

Combat bullying and sexual harassment

• communicate zero tolerance for bullying, harassment and discrimination.

• develop and promote clear and accessible written policies and guidelines and complaint processes to address gender discrimination, sexual harassment and bullying.

• develop and encourage participation in anti-bullying and harassment CPD programs.

• appoint and resource trained and skilled health professionals and expert human resources personnel to assist those wishing to report bullying, harassment and discrimination, and assist them to a satisfactory outcome.’

The NARS Report sets out a number of options for addressing the underlying causes of women lawyers’ attrition rate. Those same underlying causes provide the foundation for sexual harassment in the profession.^[35]

McDonald and Flood’s work on bystander interventions proposes that even though sexual harassment behaviour is often actively hidden by perpetrators and therefore not directly witnessed, bystander intervention can be critical to disrupting and changing a workplace culture that fosters sexual harassment and other gender-based forms of mistreatment.^[36]

Alternative business models as a means of increasing diversity in firms was one of the options proffered by the LCA in the NARS Report.^[37] Taking into account the apparent correlation between increased numbers of women in senior positions and a decrease in the incidence of sexual harassment, increased diversity in firms should go some way towards minimising sexual harassment and other forms of misconduct. For instance, Chicago-based international law firm Seyfarth Shaw introduced ‘lean management principles’ – creating what it has termed an ‘adhocracy’ where people have authority based on their actual knowledge or expertise, meaning that a legal secretary may actually have a better understanding of a project or underlying processes than the relevant senior partner.^[38] It should be noted that Seyfarth Shaw has achieved a perfect score of 100 for the last ten years in the annual Human Rights Campaign Foundation’s Corporate Equality Index, an American national benchmarking survey and report on corporate culture.^[39]

Given the link between hierarchical, male-dominated workplaces or professions and the incidence of sexual harassment,^[40] an increase in alternative legal services and so-called ‘NewLaw’^[41] type firms is to be welcomed. Organised differently to traditional hierarchical ‘BigLaw’ firms, these alternatives offer a competing career option to women and put pressure on traditional firms to ‘buck up’.

SUMMARY

The #metoo phenomena and the Harvey Weinstein effect have been integral in the current rise in public awareness surrounding sexual harassment in the workplace. Whether or not that public interest is reflected in positive change remains to be seen. At any rate, the work of the LCA and the AHRC over the last five years has given the legal profession enough tools to start bringing about a change that will hopefully stem the flow of women lawyers to government or in-house roles or out of the profession altogether, and result in a more diverse legal profession where equality is a fact and not just a fantasy.

Adrienne Morton is President of the Tasmanian Women Lawyers Association. EMAIL [e-mail].

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^[1] Law Council of Australia, National Attrition and Re-engagement Study (NARS) Report (2014), 32-4.

^[2] AHRC, Working without Fear: Results of the Sexual Harassment National Telephone Survey, (2012) 33 <https://www.humanrights.gov.au/our-work/sex-discrimination/publications/working-without-fear-results-sexual-harassment-national>.

^[3] See above note 1, 34.

^[4] Ibid, 9.

^[5] Workplace Gender Equality Agency, Data Explorer (2017) <http://data.wgea.gov.au/industries/115> .

^[6] Sex Discrimination Act 1984 (Cth), s28A.

^[7] Discrimination Act 1991 (ACT), s58; Anti-discrimination Act 1977 (NSW), s22A; Anti-discrimination Act (NT), s22; Anti-discrimination Act 1991 (QLD), s119; Equal Opportunity Act 1984 (SA), s87; Anti-discrimination Act 1986 (TAS), s17; Equal Opportunity Act 2010 (Vic), s92; Equal Opportunity Act 1984 (WA), s24.

^[8] P McDonald and M Flood, ‘Encourage. Support. Act! Bystander Approaches to Sexual Harassment in the Workplace (2012)’ p12, AHRC

^[9] Ibid, 3.

^[10] See above note 1, 5-6.

^[11] See above note 8, 12.

^[12] S Rawsthorne, ‘Sydney Uni bans ‘Rake’ barrister Charles Waterstreet over inappropriate accusation’, The Daily Telegraph (online), 26 October 2017, <http://www.dailytelegraph.com.au/news/nsw/sydney-uni-bands-rake-barrister-charles-waterstreet-over-inappropriate-accusation/news-story/4b25cdf35b2421f02d9fa16f67369661> .

^[13] State and territory legislation have similar provisions: Discrimination Act 1991 (ACT), s58; Anti-discrimination Act 1977 (NSW), s22A; Anti-discrimination Act (NT), s22; Anti-discrimination Act 1986 Anti-discrimination Act 1991 (QLD), s119; Equal Opportunity Act 1984 (SA), s87; Anti-discrimination Act 1986 (TAS), s104; Equal Opportunity Act 2010 (Vic) s92; Equal Opportunity Act 1984 (WA), s24.

^[14] [2001] FCA 418; (2001) 111 FCR 240.

^[15] [2013] VCAT 221 (13 March 2013).

^[16] [2015] QCAT 211.

^[17] [2014] FCAFC 82.

^[18] AHRC, Change the Course: National Report on Sexual Assault and Sexual Harassment at Australian Universities, (2017) 18-9.

^[19] R Jones, ‘Sexual harassment at work data to be captured in national survey’, ABC News (online), 5 November 2017, <http://www.abc.net.au/news/2017-11-05/sexual-harassment-survey-to-examine-workplaces/9119062> .

^[20] See above note, 32.

^[21] See above note 2, 4.

^[22] Victorian Equal Opportunity and Human Rights Commission, Changing the Rules: the Experience of Female Lawyers in Victoria, (2012) 42 <https://www.humanrightscommission.vic.gov.au/home/our-resources-and-publications/reports/item/487-changing-the-rules-the-experiences-of-female-lawyers-in-victoria>.

^[23] Ibid.

^[24] Insight: Where do women draw the line on sexual harassment in the workplace? (Produced by Kyle Taylor, SBS Australia, 24 October 2017).

^[25] The author has no figures to support this claim. The NARS Report was limited to the experience of legal practitioners in the legal profession and the AHRC 2012 Report only breaks down employment by broad occupation groups rather than sector – so clerical versus professional rather than by employment sector and task.

^[26] See above note 8, 15.

^[27] See above note 2, 40.

^[28] Law Council of Australia, Australian Solicitors Conduct Rules (at 24 August 2015).

^[29] ‘NSW Bar Urges Victims of Sexual Harassment to Come Forward’, New Matilda (online), 26 October 2017, <https://newmatilda.com/2017/10/26/nsw-bar-association-urges-victims-of-sexual-harassment-to-come-forward/>.

^[30] See above note 8, 5.

^[31] [2013] VCAT 221 (13 March 2013) at 226-30.

^[32] See above note 1, 34.

^[33] The Law Society of Tasmania has only recently resolved to adopt the Model Conduct Rules although it will be some time before they are enacted as statutory rules. The Northern Territory is yet to adopt the Rules.

^[34] Law Council of Australia, National Attrition and Re-engagement Study (NARS): Discussion Paper March 2014.

^[35] See above note 1, pt 7.

^[36] See above note 8, pts 3 and 4.

^[37] See above note 1, 91.

^[38] McKinsey & Company, Interview with J Stephen Poor, Lisa J Damon, Andrew M Baker and Kim Craig: ‘A new order for law’ (August 2015) <https://www.mckinsey.com/business-functions/operations/our-insights/a-new-order-for-law>; and Seyfarth Shaw LLP, SeyfarthLean, <http://www.seyfarth.com/seyfarthlean> .

^[39] Seyfarth Shaw LLP, ‘Seyfarth Receives Perfect Score in Corporate Equality Index for 10th Straight Year’ in Firm News (11 September 2017) <http://www.seyfarth.com/news/hrccei110917> .

^[40] See above note 8, 12.

^[41] ‘NewLaw’ was a term coined by Eric Chin in 2013 to describe ‘disruptors’ in the legal landscape, as opposed to the traditional firm structure or ‘BigLaw’ firm (itself a term coined by Dr George Beaton).