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What is Bullying, discrimination and harassment? What is the difference between them?

Safework NSW defines workplace bullying as repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.

The Bar Association has already provided useful guidelines as to the legal definitions of bullying harassment and discrimination.

In short summary:

  • bullying is repeated unreasonable conduct that is a threat to health and safety at work;
  • discrimination is a form of bullying that is expressly prohibited because the conduct, or treatment, occurs because of an attribute, such as sex race, disability or age, which is known as a ‘ground’ of discrimination; and
  • harassment is also a form of bullying on a prohibited ground, such as sex or disability.

This means that unlawful bullying must be part of an ongoing course of conduct, whereas individual instances of discrimination and harassment may amount to a breach the law.

The only federal law to address bullying is at section 789FD of the Fair Work Act 2009 (Cth) (FWA).  It does not cover barristers but does cover those they employ (i.e. workers only), while they are employed.

Barristers are covered by the Uniform Law and specifically regulation 123.  That means barristers can be disciplined, including losing their practising certificate, if they engage in conduct that is bullying, discrimination or harassment.

In relation to discrimination and harassment, you can find the relevant state law HERE HYPERLINK and the Federal HERE HYPERLINK.

What is the likelihood of being the target of bullying, discrimination and harassment at work in the legal profession?

Pretty high in Australia and particularly high in the legal profession.

Following the publication of Us Too?, the IBA undertook an unprecedented global engagement campaign. During visits to 30 cities across six continents, the IBA held public events and met with hundreds of stakeholders. In May 2020, the IBA announced the next phase of work, seeking to maintain momentum and draw on the insight gathered during the campaign. This next phase included the development of an anti-harassment e-learning series with The College of Law Australia, a discussion paper on the use of technology to address harassment, a report on the regulatory dimensions of inappropriate behaviour (forthcoming) and collaboration with Osiris Labs to develop immersive anti-harassment training (ongoing).

https://vimeo.com/360253333

Australia has the 6th highest rate for workplace bullying in legal workplaces, compared to 34 other European countries.   The report by the International Bar Association  (IBA) sets out the following findings. 

  • Almost three quarters (73%) of female respondents from Australia and half of the male respondents (50%) reported having been bullied in connection with their legal employment. 
  • The Australian bullying figures were “significantly higher than global averages”  , with just over half of women (55%) and around a third of men (30%) from around the world reporting having been bullied. 
  • sexual harassment numbers, with 37 per cent of women and 7 per cent of men in law globally suffering from such misconduct. 

There is a lot of overlap between discrimination, harassment and bullying with a study of Australian workplaces in general finding that of those who reported bullying, over a third were subjected to bullying conduct at least once a week.  That behaviour included:  

  • swearing at, or yelling at (37.2 per cent) colleagues; 
  • humiliating colleagues in front of others (23.2 per cent); and 
  • physically assaulting or threatening clients (21.8 per cent);
  • negative comments based on race (7.4%); and
  • unfair treatment due to gender. 

with around 7.4% experiencing negative comments due to race 47 per cent of Australian female lawyers and 13 per cent of our male lawyers reported such misconduct.

In 2018 the Australian Human Right Commission (AHRC) found that 
 
https://www.safeworkaustralia.gov.au/system/files/documents/1705/bullying-and-harassment-in-australian-workplaces-australian-workplace-barometer-results.pdf

I haven’t experienced it so how can it be happening?

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Who can be the target of bullying, discrimination and harassment?  

Anyone.

It is a fallacy to think that smart people can avoid these behaviours, or even worse, can avoid their impacts.  Intellectual prowess is no protection from these types of behaviours and sometimes can make them worse.  

The 'I am smart I can deal with being bullied' argument?  

What does bullying by barristers look like?

General examples of bullying can include the following.

  • Aggression - such as standing over someone, yelling, raising fists, pointing fingers.
  • Teasing or Jokes - that usually focus on a weakness of the person being bullied and could include being called stupid or dumb.
  • Pressuring a Person - to behave inappropriately, such as threatening disciplinary action if they do something lawful, such as giving evidence supporting another employee’s discrimination claim.
  • Exclusionary Behaviours – such as not inviting a person to meetings concerning their area of work, not inviting people to after work drinks and so on.
  • Unreasonable Work Practices - requiring work to be done in timeframes that are too short, assessing work by standards that are (in the circumstances) too high, micro-managing and so on.

Some examples from colleagues:
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What does sexual harassment by barristers look like?

Examples of sexually harassing behaviour include: 

  • unwelcome touching; 
  • staring or leering; 
  • suggestive comments or jokes; 
  • sexually explicit pictures or posters; 
  • unwanted invitations to go out on dates; 
  • requests for sex; 
  • intrusive questions about a person's private life or body; 
  • unnecessary familiarity, such as deliberately brushing up against a person; 
  • insults or taunts based on sex; 
  • sexually explicit physical contact; and 
  • sexually explicit emails or SMS text messages.

Some examples from colleagues:
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What does discrimination by barristers look like?

“Personal comments about appearance”.

“Behaviour with gendered overtone”.

“Gender slurs”.

“Being asked in open court who will take care of my baby during the trial”.

Difference between direct and indirect discrimination

Some examples from colleagues:
“I’ve appeared before the same Judge multiple times and he keeps calling me Mr X.  Mr X is the only other Indian looking man ”
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What is unconscious bias? 

We all have unconscious bias.  Etc


When does bullying, harassment or discrimination become something criminal?

INSERT Kate