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How to avoid becoming #youtoo: Minimising sexual harassment at work

25th Jun 2020

Due to the COVID-19 pandemic our concerns about managing and controlling workplace risk are heightened. Now is an opportune time to consider how employers can meet their duties to eliminate or minimise risks associated with inappropriate conduct such as sexual harassment and bullying.

Under workplace health and safety (WHS) laws, employers have a duty of care for the health and safety of their workers and others at the workplace. Under anti-discrimination laws, employers are liable for the conduct of their employees if they sexually harass other workplace participants. Both WHS and anti-discrimination laws can be relied on by a person where there is an allegation of sexual harassment.

An employer may avoid liability if it can show that it took all reasonable steps to prevent the employee or agent from sexually harassing or victimising a workplace participant (for example, see s106 of the Sex Discrimination Act 1984 (Cth) (SD Act) and the similar provisions in state and territory discrimination laws).

Cases such as Richardson v Oracle Corporation Pty Ltd [2014] FCAFC 82; 223 FCR 334 demonstrate that merely having in place a sexual harassment policy will not be enough to absolve the employer of responsibility. In Oracle, the evidence was that there was a global workplace policy and employees were required to complete online sexual harassment training every two years. Oracle also had in place investigative policies. Justice Buchanan found that the policies were inadequate because they failed to identify: that sexual harassment was against the law; the source of the law that applied to the organisation; and that the company could be held liable for the conduct.

Since 2014, and in light of the ground-breaking 2020 report from the Sex Discrimination Commissioner on Sexual Harassment, Everybody’s Business,[1] there is good reason to believe that a court would be unlikely to find that a workplace policy, even if it contained the information set out above, would satisfy the onus in s106 of the SD Act of ‘taking all reasonable steps’.

So what does ‘taking all reasonable steps’ really mean? And what measures can law firms put in place to provide a workplace free from sexual harassment?

1. Do an analysis of the risk

An initial assessment could involve consideration of the following matters:

• Do you have any policies outlining what sexual harassment means and how complaints can be made internally and externally?
• Have you provided staff with any training?
• Has there been a sexual harassment incident in the past?
• Do you consider there to be a clear message from the ‘top’ that sexual harassment will not be tolerated?

If there is no policy, training or leadership from the ‘top’, start by adopting these measures.

Obviously the size of the workplace will determine the extent of the measures required. If the firm employs less than five persons, an effective measure may be for the workplace leader to talk to staff about sexual harassment, and through words and conduct demonstrate that there is a zero-tolerance approach. Education could occur through de-identified case scenarios or case law such as the facts in the Oracle decision.

For larger law firms, the issue of sexual harassment should be explicitly included in any health and safety consultation, training and reporting.

The culture of the organisation is a critical factor that determines how it addresses sexual harassment. If there is no leadership, or commitment to cultural change, efforts to prevent and reduce sexual harassment through the introduction of policies and training are likely to be of little use.

In some workplaces, the leadership of the law firm must be prepared for an explicit or implicit pushback and be prepared to provide practical guidance on why change is beneficial and necessary. It is important to reassure people that the change does not involve blaming individual men but is about including men in the conversation about behaviour and culture.

In 2019, the International Bar Association released a groundbreaking report[2] that found that in Australia, 47% of female and 13% of male legal practitioners reported experiencing sexual harassment at work. These statistics are consistent with the Law Council of Australia’s National Report on Attrition and Re-Engagement published in 2014.[3] Shockingly, the evidence suggests that the rates of sexual harassment experienced by people at work have not decreased in the last decade.

As legal practitioners, we have professional obligations to not discriminate, sexually harass or bully people at work. This conduct is set out in Rule 42 of the Australian Solicitors’ Conduct Rules 2015 and Rule 123 of the Legal Profession Uniform Conduct (Barristers) Rules 2015. The NSW Legal Services Commissioner has expressed the view that such conduct by a lawyer is capable of amounting to professional misconduct. Whether or not a lawyer is a fit and proper person to engage in legal practice would not be limited to conduct at a law practice or in connection with it.[4]

In 2019, the Office of the Legal Services Commissioner introduced a new complaint-making process through which people can make anonymous and semi-formal complaints.

2. Provide workplace training

The best practice approach to training and education involves the following elements:

• Understanding the climate in the organisation;
• Recognising that cultural change requires interactive and experimental training by experts in the field;
• Recognising that one-on-one training or small group training is more beneficial; and
• Maintaining learning through ongoing engagement.

Any training with regards to appropriate workplace behaviour is part of the mandatory continuing legal education as to ethics and professional responsibility, practice management and business skills, and professional skills under the Legal Profession Uniform Continuing Professional Development (Solicitor) Rules and the Legal Profession Uniform Continuing Professional Development (Barrister) Rules under the Legal Profession Uniform Law.

3. Implement appropriate workplace policies

Workplace policies and procedures with regards to workers making complaints should be victim-focused; that is, focused on minimising harm to workers. This involves a fundamental re-orientation of our practices, as the current focus most often starts with the premise that sexual harassment is bad for business, inconsistent with the stated values of the law firm, and that it is in the law firm’s best interests to deny that sexual harassment has occurred and prepare for a pre-emptive defence. Sexual harassment as defined in the anti-discrimination legislation is not a criminal offence and there is no requirement to approach the complaint with an assumption that the accused is innocent.

It is important to recognise that there is a large time, effort and possible financial burden on the person making allegations and that in most cases the person would have decided to make a complaint after considerable consideration. We know that only a very small percentage of workers who experience sexual harassment make a complaint.[5]

Victim-focused policies provide for the victim’s wishes, prioritise safety and wellbeing, and shape any actions with the victim’s wishes in mind. These policies should:[6]

• Give control to the victim to make or not to make a complaint at her/his own time and in an appropriate manner;
• Provide clarification of privacy and confidentiality issues so that the person is aware of how their complaints will be dealt with;
• Enable the asking of questions, listen without judgement and show empathy;
• Commit to keeping the person informed throughout the process and before any action is taken;
• Ensure the wellbeing, protection and safety of the person, including understanding the trauma that person may have experienced and how and when symptoms of that trauma may present;
• Ensure timeliness in communications and investigations, if conducted;
• Ensure equal treatment of the person and the alleged harasser in any process, including access to support and information about rights of appeal;
• Offer the person a range of administrative adjustments if requested, such as temporary working from home or in another location away from the alleged harasser; and
• Ensure that there is a review of policy and procedure following each complaint and seek feedback from the persons involved in the process.

4. Lead from the top

Workplace change starts at the top and requires buy-in from leaders and supervisors. One of the most effective strategies to change culture and bring about a safer and more respectful workplace is to encourage and support people to be ‘active bystanders’.

Persons are not likely to take action to prevent and reduce harmful conduct or to intervene when they witness or hear about sexual harassment unless they believe that they are acting consistently with the organisation’s values and will be supported by the employer.[7]

In order to empower witnesses to act on sexist and sexually harassing behaviour, the following measures must be implemented:

• Public statements from leaders explaining that they are active bystanders and supporting the culture of transparency and accountability;
• Policies encouraging, supporting and protecting active bystanders;
• Training on what being a bystander involves;
• Creating a safe and effective way in which people can be active bystanders; and
• Evaluating the measures adopted.

Conclusion

Improving workplace safety by reducing the incidents of sexual harassment is a measure that will benefit law practices economically, through increased productivity and reduced rates of absenteeism, staff turnover and exposure to workers’ compensation claims and litigation. Women, who are overwhelmingly the victims of sexual harassment and have been effectively held back from reaching their full potential in the profession – as can be seen by the lack of gender equality in the decision-making and leadership roles[8] – will also see great benefits.

The shocking allegations against Dyson Heydon paint in stark relief the power inequality that exists in the profession and the devastating impact it has had on the women. Sexual harassment brings the whole profession into disrepute. Each one of us has an obligation to be respectful and call out inappropriate conduct when we see it.
 

Larissa Andelman is a barrister at 153 Phillip Chambers, Sydney.

Larissa specialises in workplace litigation and provides strategic advice in industrial, contractual and discrimination law. She has substantial experience in industrial regulation, termination disputes, breach of contract and advising on workplace policies. She also conducts investigations and mediations.

Her practice in workplace law intercepts with and complements other areas of litigation, including defamation and administrative and judicial review such as professional standards and working with children clearances.
 

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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