Is there a better way to address harassment and bullying?

Harassment and bullying have been key areas of concern for the profession and the wider workforce in 2018, with much discussion about how best to address these issues and work towards meaningful change.

Stacey Shortall

Well-known Wellington lawyer, Stacey Shortall, recently addressed the NZ Lawyer 2018 Women in Law Summit on this topic, and has shared with LawNews her suggested strategies for preventing and dealing with sexual harassment and bullying in law firms.

If they have not already done so, law firms around New Zealand are overhauling policies relating to sexual harassment and bullying. But in order to develop comprehensive and effective policies, Ms Shortall stresses that the right people at the highest level must be involved.

She notes that the American Bar Association (ABA) recently released a new manual of recommendations for the US legal industry in tackling workplace sexual harassment, which provides much more specific policy advice than previous versions, and includes sample policies that legal organisations can use in drafting their own policies to prohibit sexual harassment.

“The ABA Manual recommends that firms draft policies with clear definitions of sexual harassment that spell out specific behaviours. These could include asking questions about sexual orientation and making verbal comments about attractiveness. Surprising as it sounds, some people may actually need a heads-up on what is inappropriate at work. To give a simple example, there is a big difference between saying ‘I like that skirt’ to ‘you look hot in that skirt’.

“This is not to suggest that policy examples should become construed as an exhaustive list. However, I believe clear guidelines can help remove ambiguity and seek to protect everyone, while also ensuring that women are not unnecessarily penalised if men become wary of working with them out of fear of being accused of some kind of misconduct – which ultimately could affect the advancement of women in our profession.”

Ms Shortall says she also accepts that people have different senses of humour and acknowledges that some people might be concerned that the pendulum could swing too far, such that workplace “banter” in law firms disappears. But she points out that there is a time and place for everything and the workplace simply is never the place for crude or unpleasant jokes.

“It should also go without saying that sexual harassment and bullying can take place in workplace-related settings that are not the office – such as taxis, restaurants and bars. Accordingly, effective policies must plainly state that they apply irrespective of where the conduct occurs.

“The ABA likewise urges organisations to have policies expressly apply to all levels of the organisation and to non-employees, such as clients, suppliers and vendors. For the sake of completeness, polices also need to make explicit the serious disciplinary action that may be taken in the event of a breach.”

With regard to an effective complaints process, Ms Shortall says the true lynchpins to preventing sexual harassment and bullying are how law firm leaders act and what firms actually do with complaints.

“Undoubtedly, it is essential that firm leaders ensure a prompt, thorough and fair review of each complaint. All sexual harassment or bullying complaints, no matter when or against whom they are raised, should be appropriately investigated and the complainant then assured this has happened.

“I understand that careers and reputations are on the line. Firms should follow the same procedures used when a worker is accused of any type of serious misconduct. Above all else, the policies must be followed scrupulously.”

Ms Shortall says there may be times for a firm when it will feel more comfortable to handle a situation more informally, but considers that that is fraught with danger. A firm should consider itself bound by the applicable policy in every case and as to everyone (regardless of position), with no exceptions.

“As the NZ Legal Profession Survey shows, the overwhelming majority of women lawyers in New Zealand who experience sexual harassment do not report it. The survey found that just 12% of lawyers who had been sexually harassed formally reported or made a complaint about the harassment. Accordingly, no firm can assume that because people do not report sexual harassment, they do not have an issue.”

Ms Shortall notes that the small size of the legal profession makes it especially hard for women to come forward.

“The most common reason given for not reporting was fear of consequences (65%), with 49% saying they were concerned about the impact reporting would have on their career. Women know there is an informal grapevine to some degree in any community. Moreover, as lawyers, we work in a relatively conservative industry – we are trained to seek approval, follow the hierarchy and defer to senior lawyers.

“While sexual harassment and bullying does not only happen between powerful men and their subordinates, the survey showed that the harasser was most likely to be the target’s manager, supervisor, partner, or director. Such power imbalances can make it particularly difficult to report.”

For all these reasons, she considers it is crucial to establish a multichannel complaint process.

“Because some people might fear retaliation, particularly when the alleged perpetrator is a powerful person in the firm, having a mechanism that allows people to make anonymous complaints of sexual harassment or bullying can also be useful.”

Ms Shortall says the ABA similarly advises employers to provide multiple ways to report violations, including methods that do not involve any accused party, and at least one anonymous method, such as a hotline.

“Anything that any partner becomes aware of should also be assumed to put the firm on notice of alleged sexual harassment or bullying. Partners must report to the firm any sexual harassment or bullying that they witness or about which they are told. And people at the highest levels must be involved in enforcing the expected behaviour through the complaints process – a policy is just a piece of paper unless it is given teeth by someone who can bite.”

Ms Shortall believes there should be a regular training programme across all law firms.

“Training centred on eliminating unwelcome or offensive behaviour has been around for years, but results from the survey would indicate that old training solutions have not worked.

“However, there are some good new alternatives. Workplace ‘civility training’ – that focuses on promoting respect and civility in the workplace generally – may offer some new solutions to an age-old problem. Professional etiquette training that motivates people to correct poor habits, like vulgar jokes, can likewise be useful. ‘Bystander training’ – that empowers co-workers and gives them the tools to intervene if they witness harassing or bullying behaviour – can also be effective.”

Ms Shortall references University of Wisconsin Professor Shannon Rawski, who has been quoted as saying that training should focus on empowering the bystander to address conduct, thereby equipping “everyone in the workplace to stop harassment”.

“In other words, everyone can be encouraged to speak up if she or he witnesses sexual harassment or bullying. I am not talking about 30-minute ‘check the box’ training at annual retreats either – to be truly beneficial, firm-wide training needs to be meaningful, regular and compulsory. It also must include real-life examples for participants to work through together and discuss potential responses.”

Ms Shortall says policies, processes and training may demonstrate a commitment to ending sexual harassment and bullying, but they will not deliver the required outcomes on their own.

“Getting male and female lawyers at all levels of the firm to own this issue together is the only pathway to making real change. Firms need to step beyond sexual harassment and bullying to address culture as a whole. For obvious reasons, any culture that can stifle and stymie the professional advancement of all lawyers should be intolerable.

“Regardless of whether something is technically sexual harassment or bullying, no workplace should accept behaviour that is offensive or inappropriate. Indeed, while we face this watershed moment for the legal profession in New Zealand, we must raise our standards overall to develop a strong culture of professionalism and respect where sexual harassment and bullying is not welcomed or tolerated. Law firms committed to superior performance and staff satisfaction will do so.”

The most effective way to create a sexual harassment and bully-free workplace is to have senior partners who lead by example, she continues.

“This is particularly important because other partners, staff and clients look towards senior partners to decipher what a firm really stands for – and does not. If everyone believes that senior partners do not tolerate sexual harassment and/ or bullying, they are less likely to engage in or allow unprofessional conduct in the workplace. Of course, the converse is also true. With the right tone set from the top, all partners can then lead.”

“Until staff believe that partners have bought into the process, no amount of policies, processes or training on avoiding sexual harassment and bullying will work. The example set by firm leadership can make a real difference, not just in modelling behaviours and attitudes that value women, but in ensuring that real actions are taken by all partners to achieve it.” 

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