Anti-Discrimination, Equal Opportunity and Sexual Harassment Policy

Lawpoint is an equal opportunity employer and is committed to providing a work environment that is free from discrimination and harassment. All employees have the right to be treated fairly on their merits, without regard to race, age, sex, relationship status or any other factor not applicable to the position.

Lawpoint believes that all employees should be able to work in an environment free of discrimination, victimisation, sexual harassment and vilification. Lawpoint considers these behaviours unacceptable and they will not be tolerated under any circumstances. Lawpoint recognises that comments and behaviour that do not offend one person can offend another. This policy requires all staff and visitors to Lawpoint’s workplace to respect other people’s limits.

1. Application

1.1

This policy applies to all Lawpoint employees and any other person who is engaged to provide services to Lawpoint (such as contractors and labour hire), whether they work full-time, part-time, or casually.

2. Definitions

2.1

Discrimination is being treated less favourably due to personal characteristics. This treatment may result in a person being disadvantaged in any area of employment, including recruitment, training, performance management, remuneration, promotion, termination and retrenchment.

2.2

Discrimination can occur:

Directly, when a person or group is treated less favourably than another person or group in a similar situation because of a personal characteristic protected by law (see list below).
Indirectly, when an unreasonable requirement, condition or practice is imposed that has, or is likely to have, the effect of disadvantaging people with a personal characteristic protected by law (see list below).

2.3

Protected personal characteristics under Federal Discrimination Law include:

a disability, disease or injury, including work-related injury;
parental status or status as a carer, for example, because they are responsible for caring for children or other family members;
race, colour, descent, national origin, or ethnic background;
age, whether young or old, or because of age in general;
sex;
industrial activity, including being a member of an industrial organisation like a trade union or taking part in industrial activity, or deciding not to join a union;
religion;
pregnancy and breastfeeding;
sexual orientation, intersex status or gender identity, including gay, lesbian, bisexual, transsexual, transgender, queer and heterosexual;
marital status, whether married, divorced, unmarried or in a de facto relationship or same sex relationship;
political opinion;
social origin;
medical record; and
an association with someone who has, or is assumed to have, one of these characteristics, such as being the parent of a child with a disability.

2.4

It is also against the law to treat someone unfavourably because you assume they have a personal characteristic or may have it at some time in the future.

3. Sexual Harassment

3.1

Sexual harassment is a specific and serious form of harassment. It is unwelcome sexual behaviour, which could be expected to make a person feel offended, humiliated or intimidated.

3.2

It is of particular significance and relevance in the legal profession because of the significant power imbalance that exists between lawyers.

3.3

Sexual harassment can be physical, spoken or written. It can include:

comments about a person’s private life or the way they look;
sexually suggestive behaviour, such as leering or staring;
brushing up against someone, touching, fondling or hugging;
sexually suggestive comments or jokes;
displaying offensive screen savers, photos, calendars or objects;
repeated unwanted requests to go out;
requests for sex;
sexually explicit posts on social networking sites;
insults or taunts of a sexual nature;
intrusive questions or statements about a person’s private life;
sending sexually explicit emails or text messages;
inappropriate advances on social networking sites;
accessing sexually explicit internet sites;
behaviour that may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.

3.4

The Australian Solicitors Conduct Rules now contains a definition of “sexual harassment” in the Glossary:

“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.

3.5

Just because someone does not object to inappropriate behaviour in the workplace at the time, it does not mean that they are consenting to the behaviour. A person may be scared, intimidated or may lack the self-confidence to speak up.

3.6

Sexual harassment can happen at work, at work-related events, between people sharing the same workplace, or between colleagues outside of work.

3.7

A single incident is enough to constitute sexual harassment – it doesn’t have to be repeated. All incidents of sexual harassment – no matter how large or small or who is involved – require employers and managers to respond quickly and appropriately.

4. Harassment and vilification generally

4.1

Harassment is any action involving race, colour, gender, religion, age, marital status, physical or mental disability, pregnancy, personal characteristics, or sexual preference that is intimidating, offensive and unwelcome. It can be verbal, physical, written or by innuendo. Harassment may include:

racist jokes or comments;
repeated comments or teasing about a person’s appearance or private life;
obscene or offensive letters, telephone calls, e-mails or notes;
use of derogatory names;
offensive gestures; and
displays of offensive material, posters, graffiti.

4.2

Vilification is a public act that could incite hatred, serious contempt or severe ridicule towards a person or group. Vilification because of certain characteristics is against the law. These characteristics include race or religion.

5. Merit at Lawpoint

5.1

All recruitment, job selection and performance review decisions at Lawpoint will be based on merit – the skills and abilities of the candidate as measured against the inherent requirements of the position – regardless of personal characteristics.

6. Engaging in discrimination and harassment breaches Australian Solicitor’s Conduct Rules

6.1

Rule 42 regarding anti-discrimination and harassment provides:

42.1 A solicitor must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes:

discrimination;

sexual harassment;

any other form of harassment, or

workplace bullying.

6.2

In addition to being subjected to workplace discipline, including termination of employment and civil proceedings under the various racial and sexual discrimination legislation, solicitors who engage in such conduct may be subject to professional disciplinary proceedings for breaching their professional and ethical obligations.

7. What to do if you are discriminated against, sexually harassed or vilified reporting

7.1

If an employee experiences discrimination, harassment or vilification, they can and should report it. Lawpoint wants to address concerns quickly and fairly. Employees can talk to the Practice Manager or go directly to the Principal if they don’t feel comfortable talking to the Practice Manager or if they wish to make a formal complaint.

7.2

Lawpoint expects employees to report issues honestly. Making false claims against a colleague can lead to serious consequences, including dismissal from employment.

8. Do not watch in silence

8.1

All employees have a responsibility to report cases of discrimination, harassment and vilification. Sometimes, an employee who is experiencing this type of conduct may not report it because they feel intimidated or fear retribution. Employees who witness this type of behaviour should report the incident immediately to the Practice Manager or the Principal.

8.2

Bystander intervention is a prevention strategy that sends a powerful message as to what is acceptable and expected behaviour.

8.3

One type of such intervention is the 5 Ds of Bystander Intervention:

Distract – distract one or more of the people involved with the goal of interrupting the behaviour but not necessarily confronting it in the moment. Talk about something completely unrelated to change the focus of the discussion. Engage with the target and not the harasser.
Delegate – look for people to back you up when it is time to intervene. This also helps create a shared sense of responsibility among community members or a group. Ask for assistance / help from a third party or report to someone who may be able to take action due to seniority or their position within the organisation / workplace.
Direct – directly confront a situation where someone is being harmed or is at risk of being harmed by speaking to the harasser – address the behaviour not the person. Maintain objectivity and keep the discussion on point. One way of doing so is asking if everything is all right or state that you are uncomfortable with the situation / comments. Do not engage if this would place anyone at physical risk.
Delay – if more information needs to be gathered or the opportunity to intervene passes, then follow up and ask if that person is ok after the event and is there any way you can provide support.
Document – record details of the incident ASAP – name of parties, time and location of the event, witnesses, what was said / done – keep it factual and avoid interpreting the event. Memories can fade quickly and this is an important tool if you are called upon at a later stage as a bystander.

9. No Retaliation

9.1

An employee who reports discrimination, harassment and vilification should not face any negative consequences. Retaliating against someone who reports discrimination, harassment and vilification will result in disciplinary action against the person retaliating.

10. Investigating reports

10.1

Lawpoint takes discrimination, harassment and vilification grievances seriously. Depending on the situation, Lawpoint may seek to formally investigate the matter. Lawpoint will keep reports as confidential as possible, but sometimes, the person being accused needs to know about the complaint so that they are afforded procedural fairness in responding to the complaint.

10.2

Confidentiality should be maintained between those persons involved in the report. An employee who has reported a case of discrimination, harassment and vilification should not discuss that complaint with other employees or other third parties. They should not disparage or demean the alleged perpetrator to other employees or other third parties.

10.3

When a report of discrimination, harassment and vilification is made, Lawpoint will investigate the report to determine the nature and severity of the problem. Lawpoint may adopt different approaches to the report, depending on the severity of the allegations. Lawpoint will also take into account the wishes of the employee making the report.

11. How is a complaint resolved?

11.1

The resolution of a complaint will largely depend on the type and severity of the problem. Potential approaches are as follows:

(Informal) Self Help
If the employee feels comfortable doing so, the employee can make an informal approach to the alleged perpetrator, identifying the behaviour complained of and making a polite and respectful request for that behaviour to stop. This should be done as soon as possible.
An employee may find that the other person involved was not aware of the behaviour or its impact and once brought to their attention, the matter can be resolved quickly.
If an employee does not feel comfortable with this approach or has tried to resolve the concern without success, then the employee can choose to take another option.
(Informal) Informal report
An employee may choose to make an informal report to the Practice Manager and request that the Practice Manager facilitate a mediation between the employee affected and the alleged perpetrator. This can be facilitated by the employee’s manager or another Lawpoint manager or HR representative, who will be present to provide support and guidance and assist the parties to resolve the problem and reach an agreed outcome. Participation in mediation is voluntary.
Where appropriate, employees are encouraged to try and resolve issues informally and collaboratively first. However, where an employee does not feel comfortable doing so or where the seriousness of the allegations means that an informal approach is not appropriate, then a formal approach should be adopted.
(Formal) Formal report
An employee may choose to make a formal report. This should be made to the Practice Manager or the Principal.
Some reports may be addressed by Lawpoint without the need for an investigation. It is not always necessary to complete a full investigation when the matter is simple, or the required resolution is clear. This is usually the case for minor issues.
However, more serious or complex reports may need to be formally investigated. Where appropriate, Lawpoint will conduct a formal investigation, which may include interviewing witnesses as well as the employee making the complaint and the alleged perpetrator.
If an employee is required to be interviewed, the employee may choose to have a support person present, but that person cannot take part in the interview or provide responses on the employee’s behalf.
Once the investigation is complete, Lawpoint will then make a decision based on the available evidence. Potential outcomes may include ordering a written apology, issuing a formal warning, ordering counselling, dismissal from employment or where there allegation is not proved, Lawpoint may determine not to take any formal action.

12. Zero tolerance to sexual violence and sexual harassment & breaches of policy

12.1

Lawpoint has a zero tolerance approach to sexual violence and sexual harassment. Any employee who is proved to have engaged in sexual violence or serious sexual harassment towards another employee will have their employment terminated. Where appropriate, conduct will also be reported to police.

12.2

Any breach of this policy may result in disciplinary action. Depending on the seriousness of the breach, disciplinary action made lead to termination of employment with Lawpoint.

13. Responsibilities of all managers and employees

13.1

All staff are entitled to:

recruitment and selection decisions based on merit and not affected by irrelevant personal characteristics;
work free from discrimination, bullying and sexual harassment; and
the right to raise issues or to make an enquiry or complaint in a reasonable and respectful manner without being victimised.

13.2

All employees must:

follow the standards of behaviour outlined in this policy;
offer support to people who experience discrimination, bullying or sexual harassment, including providing information about how to make a complaint;
avoid gossip and respect the confidentiality of complaint resolution procedures; and
treat everyone with dignity, courtesy and respect.

14. Additional responsibilities of managers and supervisors

14.1

Managers and supervisors must also:

model appropriate standards of behaviour;
take steps to educate and make staff aware of their obligations under this policy and the law;
intervene quickly and appropriately when they become aware of inappropriate behaviour;
act fairly to resolve issues and enforce workplace behavioural standards, making sure relevant parties are heard;
help staff resolve complaints informally;
refer formal complaints about breaches of this policy to the appropriate complaint handling officer for investigation;
ensure staff who raise an issue or make a complaint are not victimised; and
ensure that recruitment decisions are based on merit and that no discriminatory requests for information are made.

15. Applicable legislation

Sex Discrimination Act 1984 (Cth)
Racial Discrimination Act 1975 (Cth)
Disability Discrimination Act 1992 (Cth)
Age Discrimination Act 2004 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
Australian Solicitor’s Conduct Rules
Fair Work Act 2009 (Cth).