Cover feature: SPEAKING UP

Is sexual harassment still an issue faced by women in the legal profession worldwide and what is being done to address the issue? Lucy McNulty reports.

It’s December and the office Christmas party season is almost upon us. While for many this simply entails an evening of bad music, cheap wine and the odd drunken dalliance, for others it could involve something altogether more sinister… unwanted amorous advances.
Sexual harassment, a term unheard of until the mid 1970s, is today a dominant concern of employers, schools, organisations and governments throughout the world.
Defined as any unwelcome attention of a sexual nature, including a range of behaviour from seemingly mild transgressions and annoyances to actual sexual abuse or sexual assault, it is a form of harassment which virtually all major employers have attempted to thwart in recent years through the implementation of preventative policies.
Yet a simple search through the archives of any national newspaper would show it still remains one of the most litigated areas of sexual discrimination law today, with employers the world over oft accused of allowing sexual harassment to continue unchallenged in the workplace. And law firms are by no means exempt from such indictments.
So what is being done to address the issue? We asked women in the US, UK and Australia to share their experiences with us. How rife is sexual harassment in the legal community in their opinion? And what has been done to tackle the problem in their country in recent years?

UK
“In the UK today, all firms are required to have policies and procedures to prevent discrimination and harassment,” explains Jane Wintringham, a senior lawyer and founder of the women lawyers’ consultancy Leading Women Lawyers. Indeed, a number of laws outlaw sexual harassment in the United Kingdom. The Sex Discrimination Act of 1975 protects individuals from being discriminated against in employment, vocational training, education, the provision and sale of goods, facilities and services, premises and the exercise of public functions due to their sex/gender. In 2005, the Sex Discrimination Act was extended into the Employment Equality (Sex Discrimination) Regulations in order to comply with the European Community’s Equal Treatment Directive. And in April 2008, anti-discrimination legislation further widened a firm’s responsibility to their staff and made them liable for any repeated sexual harassment encountered from clients, suppliers and/or third parties.
Yet in spite of such measures, many would argue that sexual harassment continues to be a problem for women lawyers in the UK. “Disadvantage and discrimination in the workplace remain real issues affecting women in the UK at all levels of business,” says Angela Watson of the UK-based women’s rights campaign group The Fawcett Society. “This is despite the fact that it is 40 years since the outlawing of discrimination against women in the workplace”.
Indeed, according to an anonymous senior female lawyer who commented recently on the legal advice website www.lawyer.com, “the days of sexual harassment are alive and kicking, and part of progressing at a law firm is being able to fend off unsolicited approaches by drunken peers, superiors or clients without alienating them.” In fact, the 2007 Equality Opportunities Commission’s report Sexual harassment in the workplace: a literature review, found that between 2005 and 2006 14,250 claims were lodged with employment tribunals in the UK on the grounds of sex discrimination and 18 per cent (34 out of 189) of sex discrimination compensation awards made in 2005 were for sexual harassment. Furthermore, in the same year Law Care, the advisory and support service for lawyers, estimated that 88 per cent of workplace bullying complaints came from women.
But, Wintringham explains, it remains difficult to ascertain the full extent of this issue in the legal community. Why? Because incidents of sexual harassment are rarely reported. In fact, the Law Society of Scotland’s 2007 Equality & Diversity report on the legal profession in Scotland found that only nine per cent of those encountering discrimination actually reported it. The reasons given for such blatant under-reporting included worry that no action would be taken, fear of being labelled as a trouble maker, the possibility of victimisation and concerns over confidentiality.
It is undoubtedly a bleak assessment of the effectiveness of anti-discrimination legislation in the UK legal market today. Yet, says Wintringham, cases of sexual harassment that are reported attract significant media interest. And the resulting potential for adverse publicity, the detrimental impact on client perception that this would bring about, coupled with employers’ recognition of their duty of care, act as a significant driver for change – as the US firm Shearman & Sterling’s prompt action to dismiss a London-based associate, in August 2008, when it was reported a vacation student claimed that he had sexually harassed her, would seem to prove.
But media coverage of a few high-profile cases will not stamp out instances of sexual harassment in the UK legal sphere altogether. It is perhaps an awareness of this that has led to the establishment of a number of organisations in the UK specifically dedicated to promoting gender equality in the workplace and challenging the objectification of female workers. For example, UK-based initiatives such as AboutEqualOpportunites and the Fawcett Charter (which launched in November 2008) work to examine the impact of discrimination on people, policy and society and provide a pubic platform for UK firms to demonstrate their commitment to promoting a fully inclusive work environment1.
But what more can be done? We need to develop the confidence and sense of empowerment to face potential harassers head-on, Wintringham asserts. “On an individual basis, women lawyers need to be equipped and empowered with the necessary life skills to deal with unwanted attention if and when this arises,” she says. “They also need to have confidence that any complaint will be dealt with in an appropriate manner by their firm. Partners also have a responsibility to deliver a clear message regarding respect and dignity in their workplace.”
Sexual harassment may remain an issue for some women lawyers in the UK but it is clear that awareness of the work needed to combat the problem is widespread and indeed, in many instances, already underway. But can the same be said for the US?

USA
From a legal perspective, sexual harassment in the US is viewed as a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments, as well as employment agencies, labour organisations and the federal government.
But are such measures enough? Certainly Roberta Liebenberg, partner at US firm Fine, Kaplan and Black and current chair of the American Bar Association (ABA) Commission on Women in the Profession, paints a positive picture of the actions being taken in US law firms to prevent incidents of sexual harassment from occurring. “Studies indicate that the vast majority of legal employers now have sexual harassment policies in place,” she says. “This is a significant improvement from 20 years ago, when roughly one-third of surveyed law firms had such policies.”
It is a noteworthy improvement which Holly English, the immediate past president of The National Association of Women Lawyers (NAWL), the US Women’s Bar Association, is also eager to promote, asserting that “the efforts in this regard have much improved in recent years, and therefore many employers are well-versed in how to avoid having these problems occur in the first place, and responding swiftly and appropriately should an issue arise.”
“Many workplaces in the US have comprehensive anti-harassment policies,” she continues, “and provide training for both managers and employees advising about the current law, penalties, ways in which such improper behaviour can be avoided or eliminated and how a workplace must respond in the event of a report or complaint about harassment.”
Yet such comprehensive anti-harassment policies are seemingly not as effective as needs be. “Unfortunately, the existence of these policies on paper and the heightened awareness of the problem do not necessarily mean that the policies are implemented effectively in practice,” Leibenberg explains. Indeed, English asserts that there still remains many US workplaces “with inadequate policies and/or training” and, “there continues to be employers who turn a blind eye to improper behaviour, tacitly endorse it or otherwise contribute to perpetuating the problem.”
In fact, although under-reporting of cases of harassment makes it hard to ascertain exactly how widespread the problem is, recent surveys suggest that almost three-quarters of women lawyers in the US believe that harassment is a problem in their workplaces, and they continue to experience gender bias in their evaluations.
So what is being done to rectify this? It is, English asserts, critical to spread sufficient awareness of these issues and the proper approaches to take to address them in order to bring about the changes necessary “so that all employees can enjoy safe and comfortable working environments”. The proper approaches include “having a policy in place; to provide training, both in increasing sensitivity to potentially biased activities and responding in the event of a problem; having a policy in place about complaints; training managers so that if a complaint is received, the matter is immediately investigated and a resolution reached as quickly as possible, with no retaliation against the complainant.”
It is an approach mirrored by the ABA Commission on Women in the Profession. Indeed, in July 2007, the Commission released a newly updated and expanded manual Sex-Based Harassment: Work-based policies for the legal profession (Second Edition) specifically intended to give legal professionals access to information on how to formulate and implement harassment policies, respond to and resolve a complaint of sex-based harassment, as well as a sample sex-based harassment policy.
As stated on the ABA website, “the US legal profession cannot expect to maintain public respect and credibility if it cannot ensure compliance with legal standards and equal opportunity in its own workplaces.” And, as Liebenberg explains, the time has never been better to address these issues. “If firms are to survive in the current economic environment,” she says, “they must provide high-quality service, increase attorney productivity, and produce greater client satisfaction. They simply cannot afford to lose their best and brightest talent because of discriminatory practices.”

Australia
And with that in mind we turn to Australia, where the issue of sexual harassment in the workplace is an issue which, according to the South Australian Equal Opportunity Commission (SAEOC) deputy commissioner Anne Burgess, “continues to attract public attention”.
Indeed, just this year, a national telephone survey was conducted by the Australian Human Rights Commission sex discrimination commissioner, Elizabeth Broderick, to ascertain the frequency of sexual harassment (a form of sexual discrimination that violates the federal Sex Discrimination Act 1984) within the country. The figures revealed that 22 per cent of women aged between 18 and 64 believe that they have been sexually harassed in the past five years2, a reduction in percentage from 2003 when 28 per cent of female respondents said they had been sexually harassed.
And, in November 2008, the Australian Human Rights Commission also introduced a code of practice for employers, Effectively preventing and responding to sexual harassment: A Code of Practice for employers, which aims to assist employers to prevent and respond to sexual harassment.
Such measures are, it would seem, indicative of a country both aware of, and willing to address, the problem of sexual harassment in the workplace. An opinion Sarah Ralph, a workplace relations partner at Australian law firm Deacons, is in agreement with. “Australia has state and federal legislation which covers discrimination and sexual harassment in the workplace,” she says, “providing a mechanism for complaint resolution and deterrence aimed at reducing sexual harassment.”
Indeed, although Australian firms are obviously not completely immune to instances of inappropriate conduct in the workplace and sexual harassment, Ralph insists “Australian law institutes have already taken significant positive steps in educating the profession about what sort of behaviour is acceptable in the workplace as well as providing guidance on how complaints of sexual harassment should be dealt with”.
“In many jurisdictions, equal opportunity and anti-sexual harassment training make up CLE components for lawyers ensuring that there is an increasing awareness of appropriate workplace behaviour by lawyers,” she adds.
But, as with the UK and US, there is undoubtedly still work to be done, as Janeen Lynch of the Victorian Equal Opportunity and Human Rights Commission indicates: “In 2007 to 2008, the Commission recorded a significant increase in the number of complaints [of sexual harassment] lodged, most notably from women.” And SAEOC’s Burgess adds: “while recent improvements have been seen in the workplace, efforts in reducing the incidents of sexual harassment and educating people about what constitutes sexual harassment remain a focus of both the Australian Human Rights Commission and the SAEOC.” Much action may have already been taken to prevent incidents of sexual harassment in the Australian legal sphere, however it would seem that there remains much to do if such harassment is to be stamped out entirely.

The future
No matter what progress different countries and cultures have made in their efforts to prevent sexual harassment in the legal workplace, it is clear that for many suppressing incidents of harassment will remain an ongoing struggle. For, even with the right laws and policies in place, there will always be individuals who believe that such measures do not apply to them, and therefore that they are free to act as they like, even if it is in a discriminatory or harassing manner. Thankfully, and as this article indicates, there is much that governments, employers and individuals can and indeed are doing to keep their workplace free from sexual discrimination and harassment. But the movement to erase sexual harassment from the workplace entirely will take both time and effort on the part of organisations and individuals. At the most basic level, fighting sexual discrimination and harassment simply means treating everyone with decency, respect and in a fair and just manner. There’s no reason that everyone cannot do so. As Liebenberg says, “the business case for work environments that are free from gender bias and harassment is more imperative than ever in today’s economy”. Clearly, there is no better time.

References

http://www.fawcettsociety.org.uk/index.asp?PageID=752
http://www.humanrights.gov.au/sexualharassment/serious_business/index.html