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Addressing sexual harassment in the workplace

Cover Story

Cite as: September 2013 87 (9) LIJ, p.32

Surveys have found one in four female lawyers  in Victoria have experienced sexual harassment  at work, but the problem remains under reported and is contributing to women leaving the legal profession.

By Karen Toohey

In December last year, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) published a report called Changing the rules: the experiences of female lawyers in Victoria (Changing the rules), which was developed in cooperation with the LIV and Victorian Women Lawyers (VWL).

It was initiated out of concern for the high rate of attrition of women from the profession. A report by the Law Society of NSW1 found 50 per cent of women taking out their first practising certificate would not be in the law five years after admission.

Changing the rules was also partly prompted by concerns raised with VEOHRC about the markedly different career trajectories of men and women – with women making up only 21 per cent of partners despite the prevalence for many years of woman graduating from law. VEOHRC was told of persistent pay gaps between men and women and significantly higher attrition rates of women from the profession.

VEOHRC sought to understand how prevalent these problems were, why they were occurring, and how they affected the lives and careers of women who had experienced them. The barriers identified in the report relate to VEOHRC’s jurisdiction – discrimination and sexual harassment – including gender pay gap, access to flexible work hours and other supports for family and carer responsibilities, access to promotion, hostile workplace and workplace culture, and sexual harassment. The report is based on a survey of more than 400 responses, focus groups, and interviews with key informants to identify leading practice and inform recommendations for future change.

The survey asked about sexual harassment. Almost 25 per cent of survey respondents (100 women) stated that they had experienced sexual harassment while working as a lawyer or legal trainee in Victoria. Another 12 per cent were aware of instances of sexual harassment happening to other female lawyers in their workplace in the last 12 months.

The most common conduct reported included sexually suggestive comments or jokes, intrusive questions about private life or physical appearance, unwelcome or inappropriate physical contact and unwelcome staring or leering.

Many women chose not to tell anyone and very few made a formal complaint. The reasons for not reporting these incidents ranged from fear of not being believed and of being ostracised, to fear of negative repercussions for their career, lack of awareness about complaints processes and ineffective responses and remedies. Many women reported that they did not think the work environment was supportive of people reporting these types of issues.

Women were also reluctant to report incidents in case they were negatively labelled – it’s a small profession after all and reputation is important. This means the behaviours and the culture persist.

Despite a few high-profile cases, people remain extremely wary of reporting incidents of discrimination and sexual harassment because they fear victimisation.

We know that the complaints we receive at the Commission are only a tiny sample of what is happening in the community and so under-reporting of sexual harassment continues to be of concern, leaving both women and employers at risk.

GLS v PLP (Human Rights) [2013] VCAT 221, a recent case where the Victorian Civil and Administrative Tribunal awarded a woman $100,000 in compensation for sexual harassment in the workplace at a suburban law firm is not the norm, but it does illustrate how workplace culture can be a dominant factor in influencing the risk of sexual harassment.

This is a real and ongoing challenge for the legal sector, as it is in many others.

Of course, the legal profession is not alone in these kinds of statistics. They are unfortunately common across the general population. But as the sector that upholds the law and helps our clients to comply with it, it is important to consider what we can do to better manage our risks, build our capacity and get the most out of our staff.

This is as much about risk management as it is about capacity building. Even though a firm may have the best policies in place on paper, they are at risk if the policy does not translate into practice. This type of change needs to be driven from the top and be part of day to day business – not left to chance or luck.

There are tools that can help. For example, VEOHRC recently launched new sexual harassment guidelines. VEOHRC drafted the guidelines to assist executives, managers and employers to understand their responsibilities in not only responding to issues that arise, but to take steps to prevent discrimination and sexual harassment in the workplace occurring.

The Equal Opportunity Act 2010 specifically requires organisations to take proactive steps to eliminate discrimination and sexual harassment in the workplace. Simply having a policy is not enough.

The guidelines help employers understand the active steps they need to take to establish and maintain a workplace that is safe, inclusive and respectful of all workplace participants.

We have seen the damage that can occur to an organisation’s reputation when they don’t take appropriate steps to prevent and respond to discrimination and sexual harassment in the workplace.

These guidelines provide a risk management strategy for employers.

The federal Workplace Gender Equality Agency also provides a framework for measuring gender equality indicators, including arrangements for dealing with sex-based harassment of employees in the workplace. These provide a measure for change and progress on key indicators that are critical to workplace gender equality.

VEOHRC also wanted to establish from the survey what, if anything, had changed since Hickie successfully took on Hunt & Hunt in 1998.

In the case of Hickie v Hunt and Hunt2, Ms Hickie alleged that the law firm Hunt and Hunt discriminated against her on the ground of sex. Ms Hickie was made a contract partner after being with the firm for seven years. At the time of being made a contract partner she was pregnant. She commenced maternity leave and later returned to work on a part-time basis. A couple of months after her return to work, Hunt and Hunt decided not to renew her contract. She was informed of the decision and on the same day she left the firm. Ms Hickie alleged discrimination in the way she was treated by the firm.

The Australian Human Rights and Equal Opportunity Commission found that there had been “indirect sex discrimination” within the meaning of s5(2) of the Sex Discrimination Act 1984 (Cth). The discrimination occurred because Ms Hickie was required to work full-time as a necessary condition to maintain her position in the firm. This requirement was a condition that disadvantaged or was likely to disadvantage women and it was not reasonable in the circumstances. Ms Hickey was awarded compensation of $95,000.

This case was important in establishing precedent in the area of sex discrimination. It typifies the discrimination that women lawyers face as they attempt to balance work life and family responsibilities. However, the order did little to address systemic practices.

If there’s one key theme to be drawn from this report it is that gender equality is still seen as a “women’s problem” rather than being seen as a sector-wide issue that requires active attention and proactive steps by everyone.

The findings of the report indicate a profession with systemic barriers to the effective workforce participation of women. Despite the high number of women entering the profession, the culture in the sector hasn’t adapted to that changed demographic.

Nearly half of all survey respondents had experienced discrimination while working as either a lawyer or a legal trainee in Victoria. This discrimination manifested through hostile work environments, workplace bullying, unfair work allocation and unequal remuneration.

VEOHRC found that six out of 10 women who had experienced discrimination did not make a complaint, while one in four did not tell or seek help from anyone at all, including family or friends.

The research showed that often when women feel unsupported in a workplace, they simply leave that workplace, or the profession as a whole, rather than risk potential repercussions that come from making a complaint.

From this year, the new Workplace Gender Equality Act 2012 will require employers to report against standardised gender equality indicators. This Act has amended the Equal Opportunity for Women in the Workplace Act 1999. With these changes, the Equal Opportunity for Women in the Workplace Agency has been renamed the Workplace Gender Equality Agency.

The new Act has changed from equal opportunity for women in the workplace to a focus on gender equality, highlighting equal remuneration between women and men, and caring responsibilities as two key dimensions.

It addresses similar systemic issues to those identified in our report, such as the gender pay gap, the under-representation of women in leadership positions, and the disadvantage women can accrue if they spend less time in the workforce than men.

These factors not only have a consequence for individual women who on average accrue less in retirement savings, but they have an impact on national productivity and the performance of business and are likely to contribute to future skill shortages.

The new Act still requires that all non-public sector employers with 100 or more employees report annually to the agency.

Overall, the changes to the Act will require employers to change the way they look at reporting and how they measure progress on gender equality. However, these changes will provide more measurable, comparable data which will provide a better overall picture of how gender equality is tracking in Australia.

And achieving gender equality means that workplaces should benefit from increased productivity and efficiency through higher staff engagement, job satisfaction and workplace morale, and reduced staff turnover and lower absenteeism.

These frameworks help us to achieve the systemic cultural change that is needed to address the issues raised by the report.

To achieve the cultural change desired, there needs to be a coordinated and complex response to these issues – with visible and practical commitment from firms, male and female leaders in the profession, and industry bodies such as the LIV, which is really taking a leadership role on this issue.

The recommendations outlined in Changing the rules cover a range of options developed in consultation with critical friends, women in the sector and industry bodies and include performance indicators aimed at promoting gender equality, a voluntary industry code, industry specific training and peer mentoring.

Workforce equality and participation, workforce diversity, and inclusive workplaces don’t happen by accident. After 30 years of discrimination law we know that. It requires, constant review and analysis to identify the barriers that exist and implement positive, proactive strategies to respond to them.

Karen Toohey is the former acting Victorian Equal Opportunity and Human Rights commissioner.

1. The Law Society of New South Wales, Thought Leadership 2011 Advancement of women in the profession – report and recommendation (2011)

2. [1998] HREOCA 8 (9 March 1998)


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