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Bullying: Too many exceptions are proving the rule

Bullying: Too many exceptions are proving the rule

By Margaret Cai

Workplace 

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Law students are aware that future workplaces may be cut-throat environments that mete out poor treatment, protected by a culture of silence. ALSA is moving to disrupt this expectation.

Snapshot
  • In the IBA’s Us Too? Bullying and Sexual Harassment in the Legal Profession report 60 per cent of Australian respondents had been bullied and almost 30 per cent had been sexually harassed during their legal career.
  • Hostile and performance-driven cultures reinforce a normalising tendency of certain behaviours in legal workplaces.
  • A legal profession which is devoid of diversity is one which will consistently fail the most vulnerable.

On 22 June 2020 news broke about an investigation commissioned by the High Court of Australia, which found that former High Court Justice Dyson Heydon sexually harassed six past judges’ associates. Chief Justice Susan Kiefel released a forceful statement expressing extreme concern and shame that this could happen at Australia’s apex court. For many, however, the occurrence of this kind of abhorrent behaviour in such a powerful institution did not require a stretch of the imagination. If this was not the watershed moment for bullying and sexual harassment in the legal profession, then I’m not sure what would be.

In the weeks that followed, countless commentaries emerged on the widespread cultural failings of the legal profession. Among them were stories – like those about Dyson Heydon – of open secrets within legal circles. The Australian legal profession is rife with bullying and sexual harassment. The data and the anecdotal evidence point to this reality. Law students entering the profession are acutely aware that future workplaces may be synonymous with a cut-throat environment, poor and degrading treatment and a culture that demands people accept it. It is unsurprising that interrelated issues of bullying and sexual harassment, diversity and inclusion, and mental health are paramount concerns for the Australian Law Students’ Association (ALSA) and the law students we represent.

Bullying, sexual harassment and the broader legal culture

As students, we are reminded that law is a noble profession. Our law schools and student societies regularly host social justice and equity initiatives. Ethics and professional responsibility form mandatory components of legal studies. Yet, systemic issues like bullying and sexual harassment do not exist in a vacuum. They are fostered by core characteristics of legal practice, like its hierarchical structure and its competitive and male-dominated culture. Such behaviours disproportionately affect women and junior members of the profession. In Hill v Hughes, a principal of a law firm was found to have sexually harassed a junior solicitor. The perpetrator aggressively pursued the victim at work, threatened her with redundancy if feelings were not reciprocated and attempted to blame her clothes, perfume and manner for his behaviour. On a broader level, his conduct reflects common cultural themes of entitlement, vulnerability and exploitation. This case speaks to a culture where junior women are Us Too? Bullying and Sexual Harassment in the Legal Professionoften perceived as collateral to men in power – the pretty intern, like the good office, comes with getting the position.

The International Bar Association’s landmark global report Us Too? Bullying and Sexual Harassment in the Legal Profession revealed that more than 60 per cent of Australian respondents had been bullied and almost 30 per cent had been sexually harassed during their legal career. This largely accords with national studies, where one in two women and more than one in three men reported having been bullied or intimidated in their current workplace. The Changing the Rules: The Experiences of Women Lawyers in Victoria report also found that 40 per cent of respondents had personally experienced discrimination while working as a lawyer or trainee. These findings are appalling and, likely still, exclude those who have left the profession as a result of their experiences. As a law student, it is difficult not to be alarmed or disheartened by the statistics.

The Victorian Court of Appeal has previously noted that “an employee who is exposed to sexist, bullying or demeaning workplace behaviour may suffer injury because of the cumulative effect of a series of minor events”. An employer’s failure to take steps to address these behaviours could constitute a breach of their duty of care. This begs the question: what about the legal profession? In light of the ubiquitous nature of bullying and sexual harassment, why are there not more disputes about it? Hostile and performance-driven cultures reinforce a normalising tendency of certain behaviours in legal workplaces. Judgments like Koehler v Cerebos (Australia) and Brown v Maurice Blackburn Cashman ultimately reflect the law’s assumption that employees in high-stress workplaces can handle those environments. Exclusionary practices which persist around the world also contribute to this expectation. They range from social cliques and sexist jokes to denying complex work to certain demographics. These entrenched attitudes and routines effectively create a culture where unethical behaviours like harassment become palatable and readily dismissed as part of the rough and tumble of legal practice. There should be no surprise that the fear of adverse career repercussions and of not being believed, the lack of accessible complaint processes and the perception of ineffective responses pose significant barriers to reporting. Consequently, the legal profession is not equipped to tackle issues of bullying and sexual harassment.

Experiences or observations of harassment in the workplace logically correspond with negative job satisfaction and lead to increased employee absenteeism and turnover. We already know that the risk of experiencing harassment is amplified by factors including gender, age, sexual orientation, disability and cultural background. It therefore follows that complacent acceptance of bullying and sexual harassment in the legal profession will continue to turn away bright talent and diverse perspectives. As is posited in Jean M Leiper’s Bar Codes: Women in the Legal Profession, it will ensure that “the law remains the preserve of a particular group . . . whose views have shaped both legal practice and the prescribed routes to professional acceptance” throughout history. The implications of this extend beyond the make-up of our legal workplaces. A legal profession that is devoid of diversity is one that will consistently fail the most vulnerable people.

Moving forward at ALSA

There is no longer a place for open secrets about predatory or aberrant behaviour in our profession. In response to significant student anxiety around bullying and sexual harassment, ALSA has adopted an advocacy imperative this year directed at championing the values and changes we want to see within the wider profession. In the aftermath of the Heydon revelations, ALSA participated in the Law Council of Australia’s national roundtable into sexual harassment in the legal profession. Together with representatives of peak legal bodies, regulators and other experts, ALSA supported reform to the Sex Discrimination Act 1984 (Cth) and laws on defamation and occupational health and safety. We also agreed that the introduction of national model harassment policies and the development of training and educational tools were necessary steps to instigating cultural change.

ALSA has planned a student-led national Bullying and Sexual Harassment Awareness Raising Week to continue the spotlight on these issues. While the prevalence of such behaviours is well known, the week will focus on how students and junior professionals can identify harassment, the reporting mechanisms available to victims and the role of bystanders. We will also introduce a new condition for membership re-affiliation, where law student societies and associations must ensure that they have a bullying and sexual harassment policy in place before they can participate in ALSA initiatives and events. 

Issues of harassment go hand-in-hand with issues relating to mental health and diversity in our profession. Students entering law school do not exhibit higher levels of distress than the general population. Yet their psychological wellbeing starts to decline from the first year of law school and continues throughout legal practice. 

In partnership with legalsuper, ALSA is also launching free online mental health first aid training for students. In equipping them to identify and appropriately respond to peers and colleagues experiencing mental health problems, the hope is for the next generation of Australian lawyers to be conscious of their own and others’ behaviours while navigating the legal profession. We will also finalise diversity and inclusion guidelines for Australian student societies and associations to implement within their law schools. This will be shared with our international counterpart, the European Law Students’ Association, as a base for the creation of its own policies.

The impetus is on everyone in the profession with a voice to advocate and be accountable for its cultural failings. In recent years, reports like Us Too?, The National Attrition and Re-engagement Study, Changing the Rules and Respect@Work have provided significant coverage of the prevalence of bullying and sexual harassment in the legal profession. There is also no shortage of recommendations to address these issues. Further inaction will constitute wilful blindness.

Conclusion

The narratives of bullying and sexual harassment are all too familiar and shameful. As the peak body of Australian law students, ALSA will continue to advocate for the kind of workplaces we would be proud to enter and represent. Our intention is to lead by example. In the past year, our public stand against bullying and sexual harassment in the profession has attracted some negative comments including:

  • “Poor snowflakes . . . can't handle the rough and tumble of real life. . . blame harassment . . . blame anything except themselves for not having what it takes.”
  • “Sweet young things. Why on earth are they doing law?”
  • “When some judge roughs you up, what are you going to do, start crying at the Bar table? Your client is depending on you. Harden up.”

These remarks reflect the pervasive attitudes that prevent victims from reporting and the legal profession from changing. There is a fine line between the managerial prerogatives in a highly competitive culture and bullying and sexual harassment in the workplace. For students and junior lawyers the structures which affirm significant power imbalances in the workplace often make it difficult to identify and challenge these behaviours. This is particularly concerning when such conduct escalates over time.

In the post-#MeToo era, progress should be measured by doing more, not promising more. After all, at what point in listening to the stories and looking at the statistics do we stop and realise that this behaviour is our cultural norm?

For references and further reading contact president@alsa.asn.au. ■


Margaret Cai is ALSA immediate past president. She is studying a Bachelor of Laws/Bachelor of Communications at University of Technology Sydney.


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