Workplace Harassment in the Legal Profession Survey

WLWA Sexual Harassment Survey and Submission to ALRC 

 Thank you to everyone who completed the survey.

WLWA is pleased to report that we closed our survey on 21 February 2019 and received over 500 responses, and lodged our submissions to the Australian Human Rights Commission’s National Inquiry into Sexual Harassment in Australian Workplaces on 29 February 2019.

Our submissions noted the following survey responses:

1. Almost 85% of the participants were female.
2. The participants included people working in a range of positions in the profession including lawyers and support staff.
3. 85% said that they had not received training or information at their current workplace about sexual harassment.
4. When asked about personal experiences of sexual harassment:
   1. 72% of participants confirmed they had personally experienced sexual harassment in the workplace.
   2. The most common type of sexual harassment experienced was “lewd jokes or suggestive comments” (77.95%).
   3. Other types of sexual harassment experienced included:
      1. Unwelcome physical touching;
      2. Sexual advances; and
      3. Invasive questioning about private life or body.
   4. The most commonly cited offender was “Legal Partner”.
   5. Almost 95% stated their harasser was male.
   6. The majority of persons who experienced sexual harassment in the workforce:
      1. did not address the sexual harassment with the harasser (85.64%); and
      2. addressed the harassment by ignoring the behaviour (63.40%).
   7. Only 7.73% addressed the sexual harassment by making a formal complaint.
5. When asked about witnessing sexual harassment in the industry:
   1. 39.62% stated they had personally witnessed sexual harassment in the workplace;
   2. The majority of those people (81.87%) stated they witnessed lewd jokes or suggestive comments;
   3. Over 50% of the incidents witnessed occurred within the last 2 years; and
   4. The majority of persons who witnessed sexual harassment in the workplace (92%) did not make a formal complaint.
6. The submissions also addressed the different statutory definitions of sexual harassment under the State’s Equal Opportunity Act 1984 and the Federal Sex Discrimination Act 1984, as the definition under the State Act requires an element of disadvantage for the definition to be met. Under the State Act, the person harassed has to have reasonable grounds for believing that a rejection of the unwelcome sexual advance, a refusal of the unwelcome request for sexual favours, or the taking of objection to unwelcome conduct of a sexual nature, would disadvantage them in connection with their employment/work or possible employment/work, or the person harassed has to have been disadvantaged in connection with their employment/work or possible employment/work because of the rejection, refusal or taking of objection to the unwelcome sexual conduct.  This is an area for reform.
7. Further, the State Act protects employees, prospective employees, commission agents, prospective commission agents, contract workers and prospective contract workers. Unlike the Federal Act, the State Act does not protect partners and prospective partners, and “all other workplace participants”.  The State Act does not appear to protect volunteers or secondees, and the Federal Act does not appear to expressly protect them either.  In the WA legal profession there are many partners, volunteers and secondees, so this is another area for reform.
8. Some of the recommendations noted in the submissions included:
   1. Providing a statutory mechanism for employers to respond to complaints of sexual harassment in the workplace, that also imposes an obligation on an employer to take action following receipt of a complaint.
   2. Providing an avenue for workers to apply to the Fair Work Commission or Western Australian Industrial Relations Commission for orders to stop sexual harassment in the workplace (as is currently available by national system employees to the FWC for orders to stop workplace bullying).
   3. Amending the Occupational Safety and Health Act 1984 (WA) to expressly provide for sexual harassment or applying similarly significant penalties (and personal obligations on directors, managers, officers, company secretaries) as currently apply under the safety legislation.
9. The submissions noted that, from our survey results, it is apparent that there is not enough being done in the Western Australian legal profession by employers to ensure that staff members are aware of their employer’s stance on sexual harassment in the workplace and feel adequately protected and supported regardless of their position or personal attributes.

    

    

   What next?

10. WLWA will now further analyse the survey results, including to determine whether age, ethnicity, sexual orientation or disability plays a role in the drivers of workplace sexual harassment.
11. When that data has been obtained, we will publish our results and focus on advancing the above law reform efforts and formulating and advancing our recommendations to address the prevalence of sexual harassment in the Western Australian legal profession with those in our profession.