In October, our Chairman and Head of Employment Marie Macdonald delivered a seminar to members of the Scottish Discrimination Law Association regarding sexual harassment, particularly in the legal profession. We have provided a summary of her talk for this month’s newsletter:
The issue of sexual harassment, including in the legal profession, is in the spotlight primarily due to the #MeToo movement, which has exposed the dark underbelly of many organisations, confirming that, sadly, sexual harassment is alive and well.
You may be forgiven for thinking this would not be an issue in the legal profession, as those in the legal profession are tasked with “upholding the law, maintaining the highest ethical standards and advising other professions to do the same” – distressingly, the “profession is rife with bullying and harassment”. This is not just a personal opinion, as shown in a 2019 report by the International Bar Association (IBA) titled “Us Too? Bullying and Sexual Harassment in the Legal Profession’.
It has to be remembered that in the past the legal profession has been on the wrong side of many litigated cases, particularly discrimination cases, where legal firms have acted in various discriminatory ways towards workers. The history of the legal profession as upholders of the law and maintaining the highest ethical standards is somewhat tarnished even before the publicity of the #MeToo movement. The main point of reference for all of us in the legal profession in looking at the issue of bullying and sexual harassment is the IBA Report.
The International Bar Association (IBA), established in 1947, is the world’s leading international organisation of legal practitioners, bar associations, law societies, law firms and in-house legal teams. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world.
Its report runs to some 130 pages. To summarise, out of 6,980 respondents from 135 countries, 1 in 2 female respondents and 1 in 3 male respondents had experienced bullying in legal workplaces. Sexual harassment was also common, with 1 in 3 female respondents and 1 in 14 male respondents having been sexually harassed in a work context.
The report shows that more needs to be done. Of respondents’ workplaces, 53% had policies and 22% undertook training to address bullying and sexual harassment. Targets of such behaviour do not report it in 57% of bullying cases and 75% of sexual harassment cases. The reasons for not reporting include the status of the perpetrator, fear of repercussions and the incident being endemic to the workplace.
This indicates policies and training do not appear to be having the desired impact. Respondents at workplaces with policies and training are just as likely to be bullied or sexually harassed as those at workplaces without. 65% of respondents who have been bullied and 37% of respondents who have been sexually harassed left or are considering leaving their workplaces.
The IBA Report makes 10 recommendations:
- Raise awareness.
- Revise and implement policies and standards.
- Introduce regular, customised training.
- Increase dialogue and best-practice sharing.
- Take ownership, from senior leaders of the profession to incoming graduates.
- Gather data and improve transparency.
- Explore flexible reporting models for people to report these kind of incidents.
- Engage with younger members of the profession - younger legal professionals are disproportionately impacted by bullying and sexual harassment.
- Appreciate the wider context. Bullying and sexual harassment do not occur in a vacuum. Mental health challenges, a lack of workplace satisfaction and insufficient diversity are all related issues. These dynamics need to be understood and addressed collectively.
- Maintain momentum. Change is not inevitable. But it is possible, if individuals, workplaces and institutions work together to eradicate bullying and sexual harassment from the profession.
The Law Society Equality & Diversity Committee is looking at the Us Too? Report in-depth to see how we in Scotland can take forward its recommendations.
The Scottish Government held a ‘Women in Law’ event and challenged the profession in a speech by the Lord Advocate to do the following:
- Partners in law firms to be 50/50 male/female by 2028.
- By 2023 every legal workplace will have a flexible workplace policy.
- Immediately adopt a zero tolerance in every legal workplace on bullying/harassment. The Law Society of Scotland have already implemented this, leading some to say that the Scottish Government’s approach is not particularly ambitious.
Progress can’t be made until the profession grapples with the idea that we have much to do. This includes unconscious bullying. It is not just the way it is! Law Society of Scotland is putting toolkits together to have women in the workplace tell about their experiences of bias/prejudice etc.
In the legal profession, bullying/harassment can be construed as professional misconduct. Ultimately, this could lead to a member of the legal profession being struck off for bullying or harassing colleagues.
However, there are many issues with reporting, such as young professionals not raising issues due to concerns their name would be reported in legal press and cause risk to their career. We need to get to the point that complaints can be reported in confidence and will be dealt with. There may be test cases where if there are significant sanctions (struck off, suspended, fined etc.) which could be the tipping point. However, there are no test cases yet.
The Law Society of Scotland want me to emphasise that time has been called on the way it has been in the past. Bullying and harassment complaints will be taken very seriously and will be dealt with.
Although this looks at the legal profession particularly, research shows similar patterns across a number of sectors in respect of sexual harassment, particularly it being under reported due to factors such a fear of repercussions, career implications or the perception that nothing will be done. The recommendations of the IBA could equally apply to any business or profession. If you are a manager or run a business, consider what policies and processes are in place and whether there could be improvements to try and stamp out this kind of behaviour.
