The Singapore Law Gazette

Unwanted and Unwelcome – Sexual Harassment at the Workplace

Surveys in other jurisdictions have shown that lawyers have experienced sexual harassment at their workplace. While there are no comparable studies of sexual harassment in Singapore law practices, prevention is always better than cure. This article discusses what behaviour may constitute sexual harassment and what steps law practices can take to address this.

Sexual Harassment in the Legal Profession – Studies in Other Jurisdictions

According to the American Bar Association, almost three quarters of women lawyers believe that harassment is a problem at their workplaces. Between two-fifths to two-thirds of female lawyers, and a quarter to a half of female court personnel, reported experiencing or observing sexual harassment.¹ Martha Neil, “Hidden Harassment” ABA Journal (March 2006) (accessed 19 October 2017)

In Australia, almost one in four female lawyers and barristers say they have experienced sexual harassment² Sarah Whyte and Jeanavive McGregor, “‘I had this hand go up my skirt’: Female lawyers speak out about sexual harassment in law firms” ABC News (October 2006) < http://www.abc.net.au/news/2016-10-27/female-lawyers-routinely-subjected-to-sexual-harassment-at-work/7964328 > (accessed 19 October 2017).

In a study of problems faced by junior lawyers in New Zealand, several respondents complained of explicit sexism or discrimination, such as hearing disparaging comments about other female practitioners or judges and being objectified by colleagues and clients.³ Josh Pemberton, “First steps: The experiences and retention of New Zealand’s junior lawyers” New Zealand Law Society (June 2016) (accessed 19 October 2017)

In a 6-month reporting period from July to December 2014, the Law Society of Upper Canada received 16 complaints from members of the bar who had experienced sex-based harassment or discrimination from other lawyers.⁴Cynthia Petersen, “Report of the Activities of the Discrimination and Harassment Counsel for the Law Society of Upper Canada” (2014) (accessed 19 October 2017)

What Constitutes Sexual Harassment?

There is no universal definition of sexual harassment. However, various international organisations have defined “sexual harassment” as follows:

European Commission’s Council Resolution	“Unwanted conduct of a sexual nature, or other conduct based on sex, affecting the dignity of women and men at work. This can include unwelcome physical, verbal or non-verbal conduct.”5 European Commission, “Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work (92/131/EEC)” at “Annex: Definitions” (accessed 19 October 2017)
UN Committee on the Elimination of Discrimination Against Women	“Unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment.”6UN Committee on the Elimination of Discrimination Against Women, “General recommendation no. 19: Violence against women” (1992) at Article 11 (accessed 19 October 2017)
International Labour Office	“Unwelcome sexual advances or verbal or physical conduct of a sexual nature which has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, abusive or offensive working environment.”7International Labour Organisation, “Thesaurus: ‘sexual harassment’” (accessed 19 October 2017)

From these definitions, we may observe that, firstly, sexual harassment is unwanted and unwelcome. This distinguishes harassment from mutual flirting or consensual romantic relationships. Moreover, sexual harassment encompasses a spectrum of behaviour and is not limited to physical conduct. Sexual harassment can include verbal or non-verbal behaviour, such as making sexually coloured remarks, showing pornography, and making sexual demands, even if there was no physical contact. Finally, sexual harassment may not be confined to the workplace. The victim’s location, the means by which the victim is harassed, and the victim’s relationship to the harasser may differ. A person could be harassed outside the office (e.g. at a client’s premises), over e-mail, or by a non-employee such as a client or vendor.

The Position in Singapore

In Singapore, the term “sexual harassment” is not defined legally.⁸ The Protection from Harassment Act does not define either “harassment” or “sexual harassment”. However the Protection from Harassment Act (“POHA”) provides a range of criminal sanctions, civil and self-help remedies to better protect people from harassment and related anti-social behaviour. The POHA gives an example of behaviour that constitutes harassment:

X and Y are co-workers. At the workplace, X loudly and graphically describes to the other co-workers X’s desire for a sexual relationship with Y in an insulting manner. X knows that Y is within earshot and intends to cause Y distress. Y is distressed. X is guilty of an offence under this section.⁹ POHA, section 3, illustration (a)

The Ministry of Manpower describes workplace harassment as “behaviour that causes or is likely to cause harassment, alarm or distress to another party.” Sexual harassment is cited as an example of behaviour that may be harassment. ¹⁰ Ministry of Manpower, “What is Workplace Harassment?” (May 2017) (accessed 19 October 2017)

Professional Misconduct

Sexual harassment by a lawyer may amount to professional misconduct.¹¹ There are reported incidents in other jurisdictions of disciplinary action being taken against lawyers for sexual harassment. See also Law Society of Singapore v Ismail bin Atan [2017] SGHC 190, where the respondent was struck off the roll for outraging the modesty of his assistant. In that case, the respondent’s conduct constituted a “serious criminal offence”. In Upper Canada, the Rules of Professional Conduct expressly define and prohibit sexual harassment.¹² The Law Society of Upper Canada, Rules of Professional Conduct, Section 6.3 ‘Sexual Harassment’ (October 2014) (accessed 19 October 2017) Lawyers are prohibited from sexually harassing a colleague, a staff member, a client, or any other person.¹³ Rule 6.3-3 – Prohibition on Sexual Harassment Sexual harassment is defined as “… one incident or a series of incidents involving unwelcome sexual advances, requests for sexual favours, or other verbal or physical conduct of a sexual nature –

(a) when such conduct might reasonably be expected to cause insecurity, discomfort, offence, or humiliation to the recipient(s) of the conduct;

(b) when submission to such conduct is made implicitly or explicitly a condition for the provision of professional services;

(c) when submission to such conduct is made implicitly or explicitly a condition of employment;

(d) when submission to or rejection of such conduct is used as a basis for any employment decision (including, but not limited to, allocation of files, matters of promotion, raise in salary, job security, and benefits affecting the employee); or

(e) when such conduct has the purpose or the effect of interfering with a person’s work performance or creating an intimidating, hostile, or offensive work environment.”

Their Rules go on to give a non-exhaustive list of examples of what constitutes sexual harassment, such as sexist jokes which cause embarrassment or offence, leering, or using sexually degrading words to describe a person.

While our Legal Profession (Professional Conduct) Rules do not expressly provide that sexual harassment constitutes professional misconduct, it is nevertheless advisable for law practices to consider how to prevent and respond to sexual harassment in their workplace.

What Law Practices Can Do

This section sets out practical steps that law practices can consider taking to prevent workplace sexual harassment.

Law practices should train their employees, especially those in management or HR positions, on various aspects including identifying potential signs of harassment, preventing harassment, handling complaints of harassment, conflict management, and counselling.

Jonathan Vegosen, a Chicago-based employment lawyer who has helped many law firms deal with sexual harassment, gives tips for management on identifying sexual harassment:

“Let’s say you heard rumors that an associate was making passes at secretarie … . Or you saw a cheery law clerk become depressed, and afraid to go into her supervisor’s office. You need to at least ask employees, ‘Is anything wrong?’”

“Has a partner suddenly denounced an associate at a partners meeting? Is he suddenly sending in bad evaluations of her? Does the paralegal frequently make jokes to the secretary, yet the secretary doesn’t smile? These too may be signs of harassment.”¹⁴ Thomson Reuters, “Sexual Harassment: What If It Happened at Your Firm?” Findlaw (2017) (accessed 19 October 2017)

Law practices should also consider developing a formal policy which prohibits sexual harassment. The following are some factors you can consider including in the policy –

• A position statement reflecting the law practice’s philosophy that sexual harassment is unacceptable conduct.
• An expression of the management’s commitment to prevent and address any complaints of sexual harassment.
• Definition of sexual harassment, with examples of what constitutes sexual harassment.
• Explanation of who is covered under the policy. (The policy should cover all employees and partners/directors of the law practice. The policy should also recognise that an employee or partner/director may be affected by sexual harassment perpetrated by an individual who is not employed by the law practice.)
• Explanation of how the policy will be enforced
• The method and process for complaints of sexual harassment
• The procedure for investigating complaints
• The actions or sanctions that can be taken against a harasser
• The steps or processes to prevent recurrence.

The policy should be disseminated within the law practice with such frequency and in such a form to ensure that all lawyers and staff are aware of it. The policy could also be discussed at staff meetings to reinforce the law practice’s philosophy that sexual harassment will not be tolerated.

For further resources in developing your law practice’s policy, you may wish to refer to the Ministry of Manpower’s Tripartite Advisory on Preventing Workplace Harassment, a non-binding guide which helps businesses address workplace harassment.¹⁵ Ministry of Manpower, “Tripartite Advisory on Managing Workplace Harassment” (December 2015) (accessed 19 October 2017)

Knowledge Management Department

The Law Society of Singapore