Eradicating the culture of silence

Sexual harassment is pervasive in Australian workplaces – in law, in parliament, across the corporate sector and in entertainment and media – with an estimated one in three Australians experiencing workplace sexual harassment in the five years to 2018.¹ This prevalence is mirrored in the legal profession in Victoria, with a staggering 36% of legal professionals personally experiencing sexual harassment at work, according to a 2019 study undertaken by the Victorian Legal Services Board and Commissioner (VLSB+C).² But what is perhaps most shocking is the culture of silence that allows such destructive behaviour in the workplace to go unchecked.

We know that sexual harassment is underreported by those directly impacted. According to a study of 10,000 Australians commissioned by the Australian Human Rights Commission, only 17% of those who experienced sexual harassment at work made a formal complaint. There is a similar ratio in Victoria's legal profession, with four out of five (81%) incidents of personally experienced sexual harassment going unreported.³

It is important to recognise and appreciate the common barriers to reporting. For Victorian legal professionals, these reasons include having their complaint ignored (41%), being treated less favourably (38%) or believing there are no consequences for the harasser (46%).⁴

We also know from the VLSB+C study of 2,324 participants that while 53% of respondents admitted to being "bystanders" to sexual harassment, that is they witnessed or heard about the conduct firsthand, as few as one in ten (10%) respondents came forward to report this.⁵

Community standards around sexual harassment are rightly changing. This is evidenced by increasing social dialogue about major local and international incidents including the #MeToo movement, and recent court, media and political scandals. This shift in expectations is applying welcome pressure to provide safe and healthy work environments.

Organisations that are serious about eradicating harassment and relationship conflicts at work need to adopt serious measures to short-circuit the potential for antisocial behaviours.

Towards the end of 2020, Lander & Rogers announced we had overhauled our firm's policy relating to sexual harassment and redefined our guidelines around consensual relationships in the workplace. We hope this move will set a benchmark for other law firms and organisations more broadly.

We made a simple but powerful change to our sexual harassment policy, introducing mandatory reporting for anyone who experiences, witnesses or becomes aware of sexual harassment within our firm. We shifted the language in our policy from "should" report to "must" report incidents. This change is designed to empower not only the impacted person, but also bystanders and witnesses of inappropriate and/or illegal conduct.

We know that mandatory reporting is not a complete answer to the problem. We recognise the importance of culture, education and confidence in an organisation's ability to manage reported behaviour in an appropriate manner.

However, we are also aware that sexual harassment is often part of a pattern of behaviour and not just a one-off by a perpetrator. This is reinforced by many high-profile recent examples. We consider that mandatory reporting is a significant step in addressing the systemic silence that allows sexual harassment to go unchecked.

In conjunction with mandatory reporting of sexual harassment, we have also introduced a new policy that provides guidelines around consensual personal relationships in the workplace. Just to be clear, we are not seeking to ban or manage personal workplace relationships. It is only those relationships that involve an actual, perceived or potential conflict of interest that must be reported. This can occur, for example, where there is a power imbalance or where one party is in a position to influence decisions affecting the other party's promotion or pay. When reporting occurs, it is handled confidentially, and conflicts of interest are addressed.

These initiatives are vital steps towards making workplaces free from sexual harassment and harm caused by relationships where conflicts of interest exist. We have a duty as a profession and community to continue to take action together against some of the most harmful behaviours that can occur in a workplace.

This article first appeared in the Law Institute Journal, April 2021.

¹Everyone's business: Fourth national survey on sexual harassment in Australian workplaces (2018)

²Report on the sexual harassment study

³Ibid., pp viii

⁴Ibid., pp ix

⁵Ibid., pp ix