The following article contains descriptions of conduct that may constitute sexual harassment, other forms of harassment and workplace bullying.
With COVID-19 no longer a global public health emergency, November/December 2023 promises to be a bumper festive season. COVID-19 may be on the wane but sexual harassment, other forms of harassment and workplace bullying continue to be prevalent in the legal profession, with the “silly season” a peak time for incidents.
Solicitors’ Obligations
Solicitors are reminded that rule 42 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 expressly proscribes such conduct:
42 Anti-discrimination and harassment
42.1 A solicitor must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes—
42.1.1 discrimination,
42.1.2 sexual harassment,
42.1.3 any other form of harassment, or
42.1.4 workplace bullying.
sexual harassment means an unwelcome sexual advance, request for sexual favours, or otherwise engaging in other unwelcome conduct of a sexual nature to the person harassed in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
harassment means harassment that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation.
workplace bullying means bullying that is unlawful under the applicable state or territory anti discrimination or human rights legislation or constitutes bullying at work under Commonwealth legislation. If no such legislative definition exists, it is conduct within the definition relied upon by the Australian Human Rights Commission to mean workplace bullying. In general terms it includes the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that could be expected to intimidate, offend, degrade or humiliate.
A breach of the Solicitors’ Rules is capable of constituting unsatisfactory professional conduct or professional misconduct and may give rise to disciplinary action.
Additional responsibilities of Principals
Sole practitioners, partners of law firms and other law practice principals must also be alert to their responsibility as employers to provide a safe workplace, which includes ensuring workers are psychologically as well as physically safe at work. This now includes a positive duty to take measures to eliminate sexual harassment.
Resources and tools are available from:
The Law Society of New South Wales
Australian Human Rights Commission
Examples of harassment, sexual harassment and workplace bullying by lawyers
Examples of inappropriate conduct by lawyers have included:
- unwelcome touching – placing an arm on an opponent’s shoulder and kissing the top of their head, touching a colleague on their outer thigh, bottom and stomach, lifting a colleague’s dress, patting and stroking a client’s forearm, blocking a colleague’s exit from the workplace until they gave the lawyer a hug
- kissing and trying to kiss a colleague
- suggestive comments or jokes – greeting a colleague at a work function in a way that parodied oral sex, suggesting a colleague try on lingerie whilst walking together through a department store, reading poetry to a colleague in a work setting that was suggestive of sexual acts and had strong sexual overtones, showing a colleague pornographic images
- indecent exposure
- making unwelcome sexual advances to a colleague by email, telephone and in person, “sexting”
- persistent unwanted invitations to a colleague to engage in a sexual relationship
- asking intrusive questions about a client’s sexual relationship with their partner, at a social function
- encouraging or pressuring colleagues, especially junior lawyers and other young staff, to consume excessive amounts of alcohol and/or recreational drugs
- excluding a colleague from team events and activities
- yelling, swearing, rudeness and sarcasm directed at a colleague
- belittling a colleague in front of other staff and in client meetings
Support services
If you have experienced or witnessed such conduct, you do not have to deal with it alone. You can reach out for assistance and support by contacting:
Solicitor Outreach Service (SOS) – 1800 592 296
1800RESPECT – 1800 737 732
Lifeline Australia – 13 11 14
Beyond Blue – 1300 224 636
Reporting incidents to legal profession regulators
If you have experienced sexual harassment, another form of harassment or workplace bullying, or witnessed another person being subjected to such conduct, you may make a formal complaint here:
Complaints must identify the complainant and the lawyer or law practice about whom the complaint is made, and describe the alleged conduct that is the subject of the complaint.
If you do not wish to make a formal complaint you can still report the incident using a dedicated online reporting platform.
The Elker platform is available online 24 hours a day, 7 days per week. The platform will log your report, provide you with some preliminary information and connect you to a specially trained support team at the Office of the NSW Legal Services Commissioner (OLSC). You can remain completely anonymous when making your report. Whilst anonymous you can communicate with the OLSC team by encrypted 2-way chat (OLSC staffed in office hours only).
Further information about these pathways is available here:
Complaints or reports need not relate to a specific incident, they can also provide information about a failure to address a culture of poor behaviour.
Reporting incidents to Police
Sexual assault can be reported to NSW Police at your nearest police station or by using the online Sexual Assault Reporting Option (SARO) platform – https://portal.police.nsw.gov.au/adultsexualassault/s/sexualassaultreportingoption?language=en_US
