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Workplace remedies needed in combatting sexual harassment
Making workplaces more accountable for what happens under their roofs may be part of the solution in stamping out sexual harassment and other forms of misconduct.
Jerome Doraisamy
Speaking recently on The Lawyers Weekly Show, ANU College of Law student Madeleine Castles (pictured) argued that while it remains essential for claimants to be able to pursue claims through the courts and seek damages, the prospect of validation at a workplace level for said claimants is something that could be actively explored.
Instead, the pair suggested, “they just want it to stop and they want the behaviour, and the culture, to change”.
Courts could, Ms Castles posited, have the power to issue structural remedies in workplaces, such as requiring an employer to introduce mandatory training to hopefully enact cultural systemic change.
It could mean, she explained, “putting an onus on workplaces and saying that this is not just about having to pay a one-off amount of damages to one individual. It’s about saying that you need to [in order to] have a shift”.
“Even if the complainant no longer is in that workplace, the idea is that, hopefully, it makes change beyond that individual complainant,” she deduced.
Considering the broader issues proactively as a soon-to-be legal professional, Ms Castles went on to say that workplace training, for example, is “absolutely necessary and should be mandatory”. It will, she agreed when asked, be something that the emerging generation of practitioners wants to see in their prospective employers.
“All lawyers should be required to undergo compulsory sexual harassment training every year. All workplaces should have a policy in place. Moreover, policies shouldn’t just exist: they need to be understood and known by the employees. You need to have ownership over the policy to understand how it’s applied and where to go if something that is in breach of the policy happens too,” she submitted.
This, she said, is particularly important for young women in the profession, “to feel supported, encouraged, and like you have someone you can talk to outside of HR if you’re not feeling safe or comfortable making a formal complaint”.
There is, Ms Castles said, “a bit of a shift” happening in Australia’s legal profession.
“Post-allegations against Dyson Heydon, there has been a recognition that we need to talk about this. We need to speak up. We need to say that it’s not acceptable to assume that this is the price of being a woman in law,” she opined.
Such attitudes will help her own generation as it enters the profession, she said, as they will be better placed to say, “That’s not acceptable. I don’t want to accept that as a price of having a career in law”.
Both Mr Pender and Ms Castles acknowledged, during the podcast episode, that “the civil legal system is one very narrow avenue for which change can occur”. It is critical that claimants are able to pursue matters and receive proportionate compensation for the hurt, humiliation and distress caused, and hopefully such dispute resolution “sends a message to the workplace that this was unacceptable”.
However, she added, such processes remain “really difficult” for myriad reasons, including but not limited to the prohibitive costs involved with such litigation.
“Certainly, in the context of #MeToo, I think there’s a bit of a sense that workplaces should be punished for allowing sexual harassment to occur. Whether we’ll ever get to a point where our courts recognise sort of punitive damages is unclear – there’s probably more work to be done in that space,” she mused.
“Ultimately, the majority of people are not going to want to pursue a claim through the courts and probably pursuing a claim through the courts is not going to be the best avenue for them. If they can receive validation at the workplace level, if they can receive change at the workplace level, if they can receive support at the workplace level, that’s what we want to be aiming for.”
The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Kieran Pender and Madeleine Castles, click below:
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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