Sexual Harassment and Bullying Essay 1 PDF

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Lawyers, Justice and Ethics Essay

Essay question 1 'If the law is to remain in proper standing with the global community, its practitioners must be of good character. Addressing the widespread bullying and sexual harassment among us is an important step in safeguarding the long-term vitality of this essential profession.’ Horacio Bernardes Neto, 'Letter from the IBA President’ in International Bar Association, Us Too? Bullying and Sexual Harassment in the Legal Profession (Report, May 2019) 7 Discuss with reference to regulation of the Australian profession, lawyers’ ethical duties and options for reform.

Embedded in the very foundation of the Australian Legal System is the notion that its practitioners be of “good fame and character”1, as such it seems wildly contradictory that the legal profession itself is rampant with sexual harassment and bullying. In fact, statistics reveal that 47% of females and 13% of males are victims of sexual harassment and 73% of females and 50% of males are subject to workplace bullying. This is “significantly higher than global averages”.2 These results truly elucidate the dire predicament the Australian legal profession is in, and affirm Neto’s view that, to preserve “the long-term vitality” of the law, sexual harassment and bullying must be addressed. To effectively demonstrate the aforementioned perspective this essay will be divided into two sections. The first will examine the standard of behaviour expected of legal professions and the ways in which the current workplace environment is disregarding these expectations, while the second section will explore prospective possibilities for reform and evaluate them from multiple perspectives to ascertain the most appropriate avenue for further action. The essay will ultimately concur with Neto’s statement that sexual harassment and bullying must be addressed to ensure the Australian legal system’s vitality and international reputation. The Expected Standard of Behaviour and the Current Workplace Environment The legal profession has always placed the standard of behaviour expected of its practitioners exceptionally high. This “tradition of civility”3, Chief Justice Spigelman states, has been “recognised as a fundamental ethical obligation”4 in the practice of the law. Accordingly, the profession regulates itself, in its many jurisdictions, through professional conduct rules, legislation and common law to effectively place ethical professional conduct as paramount. Despite this, the current condition of the legal workplace environment is such that sexual harassment and bullying has become endemic. Regulation of the Profession: Professional Conduct Rules and Legislation The conduct of advocates is regulated through professional conduct rules and legislation at a federal, state and territory level. Although specific laws and rules differ from those in other jurisdictions, they are understood to represent a similar standard of ethical responsibility. At the federal level the standard of conduct in the workplace is regulated holistically and applies 1 Conduct Rules 2 IBA report 3http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_publications/SCO2_judicialspeeches/sco2_speeche s_pastjudges.aspx#spigelman 4 Ibid

Lawyers, Justice and Ethics Essay to professions beyond legal practice. While there are currently no Commonwealth laws to regulate bullying in the workplace specifically, the Fair Work Amendment Act 2013 (Cth) enables the Fair Work Commission to address matters of workplace bullying.5 Sexual harassment in the workplace is addressed quite explicitly in the Sex Discrimination Act 1984 (Cth) which protects employees from sexual harassment in the workplace.6 In the legal profession, sexual harassment and bullying are addressed through professional conduct rules, like legislations these can vary from state to state. In the Australian Capital Territory (ACT), the Legal Profession (Solicitors) Conduct Rules 2015, a subordinate law created by the ACT Law Society under the Legal Profession Act 2006, establishes principles of professional conduct for legal practitioners in the state.7 Rule 42 of these rules clearly prohibits advocates from ‘engag[ing] in conduct which constitutes: discrimination; sexual harassment; or workplace bullying’. As a result, lawyers involved in sexual harassment or bullying act in violation of both federal legislation and professional conduct rules, and as a consequence commit professional misconduct. Admission to the Legal Profession: Guidelines and Rules Admission to the legal profession requires applicants to exhibit to their respective Admitting Authorities that they are ‘fit and proper’8 to be legal practitioners. In New South Wales (NSW), the Legal Profession Uniform Law (NSW) aims to ‘protect the administration of justice and the clients of law practices by providing a system under which persons are eligible for admission to the Australian legal profession’.9 As such the NSW Legal Profession Admission Board evaluates applicants against the Legal Profession Uniform Admission Rules 2015 wherein the importance of fitness and propriety in the legal profession is reaffirmed. A key aspect of this requirement, in all states besides South Australia, is that the applicant also be of ‘good fame and character’.10 The Victorian Legal Admissions Board also enforces the aforementioned requirements in the Victorian Disclosure Guidelines 2019, whereby applicants are required to disclose ‘any matter that could influence [the Admitting Authority’s] decision about whether [they] are “currently of good fame and character” and “a fit and proper person”’. Using the NSW rules and the Victorian guidelines the meaning of ‘fit and proper’ for the purposes of this essay can be taken to mean the ‘that the applicant must have the personal qualities of character which are necessary to discharge the important and grave responsibilities of being’11 an advocate. Sexual Harassment and Bullying in the Current Workplace Environment The law imposes such high ethical standards upon its applicants to ensure the protection of the community, as well as to preserve the reputation of the Australian legal profession within the international community. Consequently, Admitting Authorities extend the requirements of fitness and propriety and good fame and character beyond admission to practice, and classifies them as requisite to maintaining one’s status as a practitioner. To safeguard this standard of behaviour, Admitting Authorities reserve the power to strike practitioners of the 5 https://www.lawcouncil.asn.au/policy-agenda/advancing-the-profession/equal-opportunities-in-thelaw/bullying-and-harassment-in-the-workplace 6 Ibid 7 Conduct Rules 8 Admission rules 9 Legal Profession Uniform Law (NSW) 10 Legal Profession Uniform Admission Rules 2015 11 Victorian disclosure guidelines

Lawyers, Justice and Ethics Essay roll, thereby withholding their ability to practice law.12 However, while these provisions exist to uphold the integrity of the legal profession, the Australian legal profession has been reduced to the dire circumstance where it has normalised a tolerance for workplace bullying and sexual harassment, this ‘makes a joke of every ethical instinct, as well as the current professional conduct rules’ that advocates have previously been held to.13 The legal profession, as a deliverer of justice, has an especially important role in the eradication of sexual harassment and bullying in the workplace it has a responsibility to set an example for other professions. However, to effectively incite change within other professions will require that the legal profession restore its foundational values of justice, integrity and good character in the workplace.14 As Neto so aptly highlights in his speech there is ‘quantitative confirmation that bullying and sexual harassment are endemic in the legal profession’ 15, and to secure the ‘long-term vitality’16 of the law it is imperative that these issues be confronted. Prospective Possibilities for Reform and their Strengths and Limitations Thus far it has become evident that the legal profession is in a grave situation, wherein the actions of its practitioners are violating the values that lie at the very heart of the law. The practice of the law is need of reform. The following section of this essay explores possible avenues of reform, in particular the introduction of consistent training, increased flexibility in reporting models and engagement with younger practitioners. To effectively evaluate the merit of these reforms the options will be evaluated to determine their strengths and limitations. Recommendations for Reform 1. Introduction of Regular Training Workshops A survey conducted by the International Bar Association (IBA) reveals that the current legal work-environment is such that ‘only 22% of respondents’ workplaces conducted training to address bullying and sexual harassment’.17 Additionally only one in five legal practices train their employees on sexual harassment and bullying. Here, an important problem presents itself, in the fact that workplaces that do participate in training are much less likely to foster a work-environment that condones bullying and sexual harassment, yet the legal profession has remained largely unresponsive to this issue.18 A Stanford Law Review report reveals that the most ideal form of workplace training consists of a combination of internal and external training, that is training conducted in house as well as some outsourced workshops.19 This combination will not only increase training efficacy but also allow for a ‘varied and dynamic way’ of conducting interactive training. Further, 12 Victorian guidelines 13 Heydon 14 Julia Gillard Letter 15 Neto’s speech 16 Neto’s speech 17 IBA Report, 101 18 Ibid.

19 Susan Bisom-Rapp, ‘Sex Harassment Training Must Change: The Case for Legal Incentives for Transformative Education and Prevention’ (2018) 71 Stanford Law Review 62, 71.

Lawyers, Justice and Ethics Essay since training will educate practitioners on how to identify sexual harassment and bullying in the workplace, it will enable the issues to be promptly identified and addressed by victims and witnesses alike. 2. Increasing Flexibility in Reporting Models To effectively address sexual harassment and bullying it is vital that practitioners are able to report the occurrence of these incidents. An important barrier to targeting these issues exists in the fact that 57% of bullying cases and 75% of sexual harassment cases are left unreported.20 These startling statistics can largely be attributed to a lack of faith in the results reporting will yield as well as apprehension towards the repercussions of reporting. This mind-set of fear and trepidation towards reporting is such that it makes victims want to leave their workplace or the legal profession entirely.21 Recommendation two provides an ideal solution to this problem by proposing increased flexibility in sexual harassment and bullying reporting models. In order to achieve this, legal practices should attempt to create work environments that foster support and trust, thereby making victims feel safe about reporting. Moreover, practices should also aim to distinguish the occurrence of these issues from workplace hierarchies so as to ensure victims can report to someone other than their superiors to avoid intimidation and facilitate clear pathways for communication. 3. Increasing Engagement with Younger Practitioners Research conducted by the IBA reveals that younger practitioners are more likely to experience bullying or sexual harassment in the workplace.22 To younger practitioners, who have different social perception to that of the legal practitioners before them, sexual harassment and bullying are not viewed as standard workplace practices. Due to this, younger legal professionals are much less likely to tolerate such treatment in the workplace. Thus, making it very important that practices engage with their younger members, so as to ensure their voices and perspectives are heard in the workplace. This can be achieved through workplace committees, anonymous surveys or even regular events to discuss these issues. Evaluation of the Recommendations 1. Recommendation 1: Strengths and Limitations Recommendation 1 suggests the introduction of regular training workshops targeted at reducing sexual harassment and bullying in the workplace. The strengths of this recommendation in lie in the fact that it allows individual firms and legal practices to develop their own niche training workshops whilst facilitating consistency across practices through a combination of external training as well. This combination approach also allows firms to create individual workplace scenarios relevant to their field of law. While this recommendation appears to be beneficial in theory, it must be considered that Weaknesses

20 IBA, 106 21 IBA,106 22 IBA,108

Lawyers, Justice and Ethics Essay This recommendation, however, requires support from superiors within the organisation and those at the ‘organisation’s highest levels’23, this present a challenge as often those in superior positions have become accustomed to the existing work environment and would be reluctant to support large-scale changes. However, in such circumstances human resources professionals play an important role in gradually introducing training programs to superiors. This can be achieved by conducting change-management training aimed specifically at those at the higher levels before commencing training for the entire organisation. An alternative it is to involve superiors at the consultation stage of training introduction which would allow them to voice their concerns regarding the changes. 2. Recommendation 2: Strengths and Limitations It must be acknowledged that improving flexible reporting models is not an exhaustive solution to sexual harassment and bullying in the workplace. While it does facilitate easier pathways for communication and as a result reporting, often victims are reluctant to report harassment due to the status of the offender. This is a concern that requires a more comprehensive resolution, which can be done by workplaces fostering a positive response and outlook towards reporting. Thus, ultimately reducing the stigma associated with reporting superiors. 3. Recommendation 3: Strengths and Limitations While this recommendation is beneficial in that it provides a voice for the youth, its youcentric focus has the potential to make older-generation practitioners with much more experience feel disenfranchised. However, if the focus of the recommendation is framed as one aimed to bridge the gap between the young and old members of the profession, both sides would be encouraged to engage with each other’s perspectives and develop an appreciation for the changes occurring in the legal workplace. Thus, it has become evident that to safeguard the ‘long-term vitality’ of the legal profession sexual harassment and bullying in the legal workplace must first be addressed. The existence of these issues in the law, a profession whose practitioners are held to exceptionally high standards of fitness and propriety, is highly contradictory to the profession’s foundational values of integrity and justice. To preserve the legal profession’s proper standing in the international community there is a pressing need for a response to sexual harassment and bullying. The recommendations presented above provide an ideal avenue for reform. Each of these recommendations should be applied simultaneously to create a coherent solution to the widespread sexual harassment and bullying. The current state of the legal system is such that it fails to preserve the administration of justice for its clients resulting in a loss of faith in the justice system. The integrity of this profession must be restored, and this can only be accomplished by addressing the issues that are responsible for the decay of this profession.

23 IBA,101...