27 July 2022, by Harleen Kaur (Leena), Advocate & Solicitor of the High Court of Malaya and Santhi Latha, President, Association of Women Lawyers
Harassment and sexual harassment happens, even in the legal workplace. It is a fact, not an anomaly. It happens regardless of the gender of the perpetrator or the victim/survivor; and it happens regardless of the hierarchy within the organisation.
These instances should not be dismissed as one-off incidents brought upon by stress or pressure at work or from personal life, or an exercise of poor judgment. These are the acts of a predator who may be embedded within the firm and who chooses their prey carefully.
The alleged harasser may present themself as humorous, charming, supportive, well-intentioned, helpful, eg the ideal friend/colleague/boss – making it often impossible to believe that the specific individual could have behaved in such a manner. While harassment may be more obvious – taking the form of oral harassment: shouting and the use of verbally abusive language; and physical harassment: throwing things at the victim – sexual harassment is more insidious: subtle behaviour that hints at sexual impropriety such as language laden with sexual innuendo, “accidental” touching and more, that may take place orally, physically, and online.
In instances of sexual harassment, the victim/survivor is often left feeling confused, afraid, and isolated with the nagging fear that they may have misunderstood what has occurred, or that by lodging a formal complaint, they risk retaliation from the alleged perpetrator or the firm, and that they may put their job and reputation at risk in what is a tight knit community. Victims/survivors also often do not report their experiences because they believe that official channels may not take sufficient action.
The Malaysian Bar Perspective
From 20 to 30 July 2020, the Kuala Lumpur Bar Gender, Equality and Diversity Committee launched a Campaign to stop sexual harassment in the workplace. During this campaign, 216 Kuala Lumpur law firms pledged to stop harassment and sexual harassment by adopting and implementing this policy in their firms.
If your firm does not already have such a policy, consider adopting and implementing this in your firm. The template is generic and can easily be modified to suit the specific circumstances of your workplace.
Further, as announced in Circular No 485/2021| Sexual Harassment and Applicable Ruling of the Bar Council (dated 13 Dec 2021), the Bar Council passed Ruling 14.29 which states:
“14.29. Sexual Harassment Constitutes Misconduct Under Section 94(3) of The Act:
(1) Any act of sexual harassment by an Advocate and Solicitor or a pupil in a professional capacity or in a professional setting amounts to misconduct.
(2) Sexual harassment means any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, made directly or indirectly at a person or physically communicated in person or through the use of any medium or physical conduct, which a reasonable person would consider to be offensive or humiliating or a threat to their well-being or comfort.”
The Employer Perspective
As employers, we owe a duty of care to every employee within the firm to ensure that they work in a safe and conducive environment. Key factors that are considered by the victim/survivor when deciding whether to lodge a complaint of harassment or sexual harassment include:
- An individual evaluation of the trustworthiness of the firm. The focus is on whether the firm will take the complaint seriously, and whether appropriate sanctions will be imposed after a finding of harassment or sexual harassment is established. The firm/employer should expect to contend with a conflict of interest between empowering the victim/survivor on the one hand and protecting against litigation on the other.
It is critical when creating a harassment/sexual harassment free environment, to:
- have documented policies and processes with timelines;
- appoint impartial investigators and decision makers, should the need arise;
- be aware of sensitivities in the treatment of the affected parties throughout the process;
- ensure there is available protection against retaliation from either party; and
- be aware of perceived fairness of outcomes.
Please see the Kuala Lumpur Bar Committee’s policy for a recommended step-by-step procedure.
- Understand the firm culture on harassment and sexual harassment, eg the norms around sexist behaviour – for example, so-called sexual banter, bullying, adherence to gender stereotypes, and the informal actions of leadership within the firm. Such firm culture may perpetuate or normalise different forms of harassment, and an awareness of this is a critical step to remove/limit such behaviour.
The firm culture highlights how complainants can expect to be treated when they report, and whether they are likely to receive support within the firm. This is crucial. Colleagues depend on each other, and positive relationships help foster a sense of belonging and promote wellbeing. A failure by the firm to manage such complaints effectively and professionally can have immediate and long-term negative implications on the firm and its lawyers, not just within the legal community but amongst clients and other stakeholders as well.
- The firm set-up is also relevant, and factors like the gender composition of the firm and firm hierarchy matter.
As an employer or partner in your firm, the steps mentioned above can be implemented – at almost zero cost – to safeguard against harassment and sexual harassment. Ignoring the possibility that harassment or sexual harassment can occur in your legal workplace is impractical, because should an incident occur, not having the necessary procedures in place could result in chaos.
The impact of allegations of harassment or sexual harassment in any workplace is not minor and it will not go away, as such legal firms should:
- implement clear policies against harassment and sexual harassment;
- install and execute an effective and structured reporting mechanism that is confidential; and
- rely on the Bar Council’s Peer Support Network (“PSN”) to assist the survivor in such situations.
Your goal: to have a grievance mechanism in place to handle complaints of harassment or sexual harassment. This does not have to be complicated but must be clear, transparent, and confidential (to the alleged perpetrator and victim/survivor). From a risk management perspective, this is critical.
Professional Indemnity Insurance only provides cover to lawyers/firms in relation to the work or service they provide so any liability that may arise from complaints of harassment or sexual harassment will have to be borne by the firm.
Firms that have a clear reporting mechanism in place, as opposed a vague, “my door is always open” approach would be on firmer footing toward ensuring a harassment-free workplace.
We recommend that with every new hire, the induction includes highlighting the grievance procedure and that any complaint received (whether about harassment, sexual harassment, or other issues) will be treated confidentially and investigated in a fair, respectful and timely manner.
The Malaysian Bar’s Peer Support Network
There are varying degrees and forms of harassment and sexual harassment, and this is a complex arena often filled with “he said, she said, they said” allegations that will impact negatively on the firm and all its personnel. The current landscape is perpetrator-focused, eg the law and procedure are wholly focused on the rights and liabilities of the alleged perpetrator, and what should or should not be done. This leaves little room for the victim/survivor’s voice, save and except in the role of complainant.
The PSN was created taking this into consideration. It is a network consisting of members of the legal fraternity who have been trained to offer confidential support and guidance so the complainant can follow through with the different options available, including:
- Complaint to employer;
- Complaint to Advocates & Solicitors Disciplinary Board;
- Making a police report and following through on a criminal complaint; and
- Filing a civil suit against the alleged perpetrator, and possibly the employer.
If you are aware of any victim/survivor who has suffered harassment or sexual harassment in the legal workplace, you may refer them to the PSN. This starts with the simple process of the victim/survivor lodging written feedback. The documentation to do this is accessible either through the Malaysian Bar website (www.malaysianbar.org.my) or the respective State Bar websites.
The Malaysian Bar will continue to train Case Handlers (“CH”) for the PSN – there are currently 18 CHs ready to assist victims/survivors on their journey to seek redress. The CH training encompasses completing two online programmes and 7 hours of actual training. If you would like to become a CH with the PSN, please register here.
The eradication of harassment and sexual harassment in the legal workplace is critical. These issues are not gender issues; and they are certainly not about lawyers who cannot take the “heat”. It is no longer acceptable to say, “This happened to me, and I survived, (and it has made me a better lawyer) so there is no issue”. Eradicating harassment and sexual harassment is about building and maintaining a culture of respect within the legal profession. It is about not accepting conduct that threatens, demeans, belittles, disrespects and physically, emotionally, and psychologically harms people who work within the legal profession. We are, after all, lawyers and we set the benchmark of what is acceptable conduct, and harassment or sexual harassment in any context is never acceptable conduct.