#TimesUp for the legal profession

It started with a casual invitation for drinks after work.  

The married, male senior associate invited Alison*, a graduate working in a large, national law firm, to join him at a bar nearby. She was new to the team they both worked in and thought the invitation had been extended to other colleagues. She was wrong.

“I didn’t realise it was a sexual invitation. It was not until I arrived that his words and the physical contact made it very clear,” says Alison. 

She left soon after he attempted to grope her chest. It would be the first of many situations in which the man manipulated his power to harass the younger woman.

 “He would ask me for coffees and drinks, telling me it was a business meeting,” says Alison. “Then he would say he wanted to have sex with me. He would ask me to go away with him on the weekend. I managed to get out of actually sleeping with him, but I was put in situations with a lot of physical contact that I didn’t want.”

No sooner had Alison rotated to a new team than a second tyrant emerged. This time, it was a married partner at the firm who was in his 40s and had children Alison had met when they came into the office during the school holidays. This partner made lewd comments “every time he got a chance” and found ways to touch Alison’s chest or bottom. Once, he invited her to attend a conference with his team, which ended in a boozy night out at a strip club. The partner paid for a lap dance and insisted Alison accompany him.

The harassment from both men escalated to the point that, one Saturday, the first lawyer came past Alison’s house under the guise of going for a bike ride. When Alison awkwardly invited him in for a glass of water, he forced his genitals into her hand. 

“He physically pushed it, there wasn’t much I could do,” says Alison, who had joined the firm in her 30s after leaving a senior position in the finance sector. She had been prepared to accept a substantial pay cut for a coveted graduate role in the firm, but no dollar price could have prepared her for the personal cost of the sexual harassment she endured in her first year as a lawyer.

“The whole experience almost broke me; I was suicidal,” says Alison. “It still affects me. I had three university degrees and a successful career. But the firm made it very clear, to put it in the words of a grad in the year above me, I was nothing more than a piece of shit on the bottom of their shoe.”

A hidden scourge in law

It might be easy to assume Alison’s experience occurred decades ago, in an era when firms were less vocal than they are today about gender equality. But the story you have just read is barely a year old. Alison left the firm in August 2018. 

The details she describes are shocking but not outlandish to most of us in the age of #MeToo and #TimesUp. Recent events in NSW Parliament and the Sydney theatre industry have ensured a steady outpouring of news stories exposing sexual harassment in Australia. And research tells us this is an issue affecting all industries at alarming rates.

The results of the Australian Human Rights Commission (AHRC) Sexual Harassment Survey, published in September, found that around one in three Australians (39 per cent) has been sexually harassed at work in the past five years.

You might expect that lawyers would report lower rates of harassment, given their years of training and familiarity with the legal system. After all, Rule 42 of the Australian Solicitors’ Conduct Rules explicitly warns lawyers that sexual harassment can constitute professional misconduct. Yet data from the International Bar Association (IBA) Bullying and Sexual Harassment Survey, which surveyed 7,000 lawyers from 135 countries in 2018, found 25 per cent of lawyers around the world had been sexually harassed during their careers. 

The IBA’s Legal Policy and Research Unit has collated responses from the 1,000 Australian lawyers involved in the survey and revealed them exclusively to LSJ for this story. Alarmingly, the data shows sexual harassment is occurring at an even higher rate in Australia than the rest of the legal world. About one third (37 per cent) of Australian lawyers reported experiencing sexual harassment. 

The Chief Executive Officer of the Law Society of NSW, Michael Tidball, says the numbers are “condemning”. 

“It is ridiculous that we are sitting here, in 2018, still talking about sexual harassment,” says Tidball. “The legal profession is premised on defending the rights of all. The issue of sexual harassment is about fundamental rights.

“This issue is not about men or women; this is about all people being treated equally and with respect in the workplace. Where that is not happening, the leaders of the profession must step up to create change.”

The tip of an iceberg 

When I posed a question about the prevalence of sexual harassment among lawyers on social media, I was met with a flood of responses from women who had fallen prey to this scourge at work. I followed up with more than 10 women over the phone or in person and they detailed behaviour that ranged from creepy to criminal. No men responded to me – though the rates of victimisation are substantially lower for men. The IBA survey found that one in two female lawyers experience sexual harassment at work, compared to one in eight male lawyers. 

One woman spoke of a senior crown prosecutor who “frequently discussed matters of a sexual nature” around her, and frequently talked about “rubbing cream on his penis for some medical condition, and how it made him feel like he was masturbating”. Another woman described a dinner at a regional law society in NSW, at which a senior member of the profession kissed her on the hand and told her she would need “more than blonde hair if you want to be taken seriously”. 

One Brisbane graduate said she quit and moved to London after a male colleague had followed her to her parents’ home late at night and banged on the door, demanding a sexual invitation. Another woman, a talented young lawyer who I attended law school with, had been forcibly kissed on the lips by an older lawyer at a party. Both men in those cases later denied all memory of the incidents when the women reported them to human resources. The men are still working in their respective firms.

Josh Bornstein, the National Head of Employment Law at Maurice Blackburn, believes the law is an industry with “a high incidence of bullying and sexual harassment”. He says this is an issue not properly understood or openly discussed because perpetrators are careful to cover their tracks with legal tools.

“I’ve handled a lot of cases in the legal profession,” says Bornstein. “Very few have actually gone to trial, because they’ve been settled. I’m conscious of the fact that every time I settle a case on confidential terms, the problem remains under the radar. The extent of the problem is never going to be understood with confidentiality arrangements.”

Will Barsby, an employment lawyer specialising in workplace rights at Shine Lawyers, agrees that lawyers are not immune to or innocent from sexual harassment claims.

“Lawyers or people in the legal sector make up a good handful of the cases I have worked on,” says Barsby. “Sexual harassment doesn’t discriminate. We see workers in a range of industries and older workers targeted as much as younger.”

The lawyers who spoke to me about their sexual harassment experiences worked in a range of legal workplaces in cities and regional areas. The victims weren’t always the youngest employees, but all, like Alison, were targeted by more senior men in the office hierarchy. 

“The common theme is power,” says Barsby. “Wherever there is a power imbalance, that’s when someone becomes vulnerable.”

The effect on careers

Leah Marrone is the Vice-President of the Australian Women Lawyers Association and has just finished a three-year term as President of the Women Lawyers’ Association of South Australia. She says she “rarely go[es] a couple of weeks without being contacted” by a female lawyer asking for advice in a sexual harassment or other sex discrimination situation.

While Marrone has emerged as an advocate for equality and advancement of women in the profession, she can personally empathise with the powerlessness that victims of sexual harassment endure. As a junior solicitor in her early 20s working in the South Australian Crown Solicitors Office, Marrone was targeted by a manager who was about 25 years her senior. 

The man would invite junior staff into his office to watch porn under the guise of investigating public servants who had breached protocol by watching it at work. He would laugh and call Marrone prudish when she refused to join him. He regularly commented on Marrone’s clothes and made gestures to try and touch her chest. One night, he danced into her office dressed in an animal onesie, making sexual motions and noises. In another instance, he and Marrone attended a conference dinner and his behaviour towards her was so appalling that other members of the profession were checking on Marrone to make sure she got home safely.

“I developed anxiety-related symptoms,” admits Marrone, who began to suffer from irritable bowel syndrome as well as painful back and neck problems. She was forced to take weeks of unpaid sick leave. 

“The manager denied my re-classification or promotion, despite me receiving high praise from clients and both counsel I was briefing at the time on a large and complex matter,” she continues. “It really affected me financially.”

Marrone says the whole experience set her back years in her career because she was so desperate to leave that she accepted a new role that was effectively a demotion. 

Studies have shown this is a familiar story. The Law Council’s 2014 National Attrition and Re-engagement Study (NARS) found that one in four Australian female lawyers had experienced sexual harassment at work. Researchers found the experience was one reason more than one in three women said they were considering a new job in the next five years.

“The NARS report showed so many women leave the law after five years, and one of the big reasons for that is gender-based discrimination in all its forms, including sexual harassment,” says Marrone. 

This was the case for Alison, who in August joined another firm to finish her two years of supervised legal practice. She has vowed to quit the profession once her two-year stint is complete because, in her words, “I don’t want to be part of a system that allows people to be treated like that.”

What can we do to change this?

About half of the women I spoke to said they had reported the sexual harassment to a line manager or their Human Resources Department. The other half, including Alison, were too terrified of the repercussions. Each had peers warn them not to report the situation in case whistleblowers were treated unfavourably – and studies show their fears are not unfounded.

The AHRC survey found that one in five people who made a formal report about sexual harassment in their workplaces was ostracised, victimised, ignored by colleagues or resigned. The IBA survey found that reporting was even riskier for lawyers, with one in two enduring an unchanged or exacerbated situation after they reported sexual harassment to superiors. Seventy-three per cent of the time, the perpetrator was not sanctioned. 

Kieran Pender, the Legal Advisor in the IBA’s Legal Policy and Research Unit, notes that many respondents to the IBA survey said they had workplace sexual harassment policies at their place of employment. This didn’t prevent the behaviour occurring. There was one thing that did work, though: training.

“There was no statistical correlation between workplaces having polices on sexual harassment and there being less sexual harassment,” says Pender. “However, there was a clear correlation between firms that conducted sexual harassment training and people experiencing less harassment. There was also more reporting when it did happen.”

The Law Society of NSW has drafted a preliminary submission to the Law Council of Australia, to contribute to the AHRC’s national inquiry into sexual harassment in workplaces that is underway. The submission recommends several legislative changes, including clarifying the definition of sexual harassment, shifting the onus of proof for complaints under the Sex Discrimination Act (the onus of proof currently rests on complainants), strengthening protections for whistleblowers, and extending the six-month time limit to bring a sexual harassment complaint to the AHRC.

The submission also suggests introducing a mandatory reporting scheme to hold workplaces publicly accountable for sexual harassment situations they may keep quiet internally. It’s a suggestion that Kate Eastman SC, a Sydney-based human rights barrister, supports.

“We have mandatory reporting in a range of different areas in workplace health and safety,” says Eastman. “Why not extend it to gender-based violence and harassment? Women coming to work shouldn’t feel they have to run the gauntlet of sexual harassment just like they should feel confident they are not going to trip over electricity cords in the hallway.”

According to Alison, creating safer workplaces would require serious structural changes to the traditional pyramid hierarchy of law firms. It’s a change that many equity partners might be hesitant to explore. 

“All the hierarchies and processes firms have in place are almost designed to allow this [sexual harassment] to happen,” says Alison. “People say they’re surprised when it gets taken advantage of. But I don’t think anyone should be surprised. Because of the enormous power imbalance that the firm establishes.”   

Listen to women lawyers share their harrowing experiences of sexual harassment in episode two of the Off the Record podcast.
Available on iTunes, Spotify and Whooshkaa.

The Solicitor Outreach Service (SOS) is an independent and confidential psychological counselling service for NSW solicitors. Call 1800 592 296 to access this service, or visit https://www.lawsociety.com.au/sos to learn more.