It seems that as 2017 gathered steam, more and more brave survivors of sexual harassment in the workplace gained the courage to name their alleged harassers.
From Hollywood bigwigs and actors to Australian TV personalities; it seems that a vast array of perpetrators and inappropriate actions within the entertainment industry have finally come to light.
There is no doubt that any move to identify and eliminate sexual harassment at work is a good thing. However, what is important as we close the ‘year of the Weinstein’ is that we don’t forget some of the less obvious – but no less damaging – manifestations of sexual harassment in the workplace.
The reach of Australian legislation protecting workers is impressive. Yet many workers and employers still fail to recognise that sexual harassment is occurring on a regular basis. For example – a workplace might tacitly support that ‘touchy feely’ manager, or the ‘jokey’ worker who pushes the line on blue humour. What is certainly not acceptable under law, can in some contexts become normalised.
Developing broad-ranging understanding of what is and what is not sexual harassment, can be quite challenging. How to combat this lack of knowledge is the next frontier for employers and workers alike.
Key definitions of sexual harassment
The Federal Sex Discrimination Act contains the following definition of sexual harassment:
28A – Meaning of Sexual Harassment
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engaged in other unwelcome conduct of a sexual nature in relation 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.
Importantly, 28A(1)(b) provides for the broader “unwelcome conduct of a sexual nature.”
Both workers and employers alike face some knowledge gaps in terms of the reach of the definition. And what could mistakenly be thought of as ‘just mucking around’ or ‘a harmless Aussie joke’ might in fact fall squarely within the meaning of sexual harassment.
As seen in the legislation, it is not a matter of whether the person harassing might have anticipated an adverse reaction from the person harassed. The relevant threshold in gauging the reaction from the viewpoint of the ubiquitous ‘reasonable person’.
global reach – the #metoo campaign
We watched the tsunami of the ‘#metoo’ campaign encouraging women across the globe to share their experiences of sexual harassment, by using the simple hashtag across social media. The campaign has shed valuable light upon the prevalence of sexual harassment in society. Both women and men have been subjected to unacceptable words and acts – often without support or a sufficient avenue for redress. We are beginning to understand that sexual harassment is blind to gender, with men becoming susceptible to this behaviour – as the matter of Kordas shows.
Unique questions arise for employers when we consider the various social media platforms being used by women to spread this message. If a person hashtags #metoo from a workplace, the employer might well have an obligation to follow up on this informal notification. Certainly, if there are subtle or overt signs of a connection between the claim and work, an investigation of possible workplace sexual harassment might well be advisable.
THE extreme and the ugly…
As noted, 2017 could certainly be considered the year in which the issue of sexual harassment hit the headlines in a major way. In the United States, the verbal and physical exploits of Hollywood’s Harvey Weinstein became part of a horrifying litany of sexual harassment occurrences in the workplace. Similarly in Australia, media personality Don Burke has faced extensive allegations of sexual harassment in the workplace, stemming across many years in his work as the nation’s ‘gardening guru’.
Yet it is arguable that such extreme cases do little to assist the public’s understanding of the more fine-grained aspects of workplace sexual harassment. Across Australian workplaces, only a small percentage of workers who have been sexually harassed will report the behaviour. In general, this is due to the fact that sexual harassment is only understood to be the kinds of egregious, physical acts that have made media headlines in 2017.
The subtler acts of sexually-based joking, leering, cornering, propositioning and unwanted affection are less likely understood by workers (and even some employers) as being what they are – sexual harassment. How to keep such harassment at the forefront of employer thinking into 2018 and beyond, is the challenge.
risk of ignorance
When whispers and talk arise about an incident of sexual harassment, employers need to pay close attention. If an employee approaches management with a concern, it is important to understand that verbal notification of sexual harassment is generally all that is needed.
Those subject to harassment are not required to make a formal, written complaint. The risks of not acting on an informal, verbal notification of unacceptable behaviour can be high, as demonstrated by the cases of Trolan and Matthews. Employers in this situation have faced mounting costs associated with statutory and common law claims – not to mention the operational costs of allowing sexual harassment to occur in the workplace initially.
Workplaces where rank and hierarchy exist – such as emergency services and the armed forces – can be particularly susceptible to occurrences of sexual harassment. In the recent NSW case of Torres v Commissioner of Police  NSWIRC 1001, the Commission noted that part of the problem with the senior constable’s lewd behaviour stemmed from these displays being forced upon more junior colleagues. His dismissal was found to be warranted in light of the gravity of his sexual harassment at work. Those in lower positions can feel that they have no option but to accept the behaviour.
Taking advantage of junior and/or more vulnerable workers can also be evident in low-paid and transient industries. Recent unsavoury cases of sexual harassment have been found to have occurred in farming and horticultural industries where transient workers are open to abuses by employers and permanent staff. Similarly, in hospitality workplaces, junior staff are particularly prone to sexual harassment. Age, time in the role, and financial necessity are just some of the vulnerabilities that can lead to harassment.
workplace sexual harassment policies crucial
The importance of having meaningful and accessible workplace sexual harassment policies cannot be overstated. It is not enough to simply email staff about a generic policy on sexual harassment in the workplace. And it is also not satisfactory to do the bulk of education activities at the point of recruitment.
Like any workplace risk, sexual harassment needs to be monitored across time and in the context of each individual work site. Policies should remain living documents that provide robust responses to any unacceptable workplace behaviours.
The costs of failing in this area include not only money and time, but also that most valuable of corporate commodities – reputation.
strong but subtle RESPONSES
2017 brought sexual harassment in the workplace front-and-centre for the global viewing public. Tales of power gone astray and a culture of staying quiet have all led to the situations that have dominated the headlines in recent months. There is no denying the importance of bringing such stories to light. However appropriate workplace responses will not simply engage with the worst types of sexual harassment, such as we have heard about recently in the media. Active employers will necessarily source the best and most responsive policies, addressing all issues that might allow sexual harassment to fester and grow in the workplace.
Hopefully, 2018 will be the year in which all employers develop responsive workplace systems designed to detect the earliest threat of sexual harassment across every site. If you need assistance, WISE Workplace can help with sexual harassment policies, training and investigations.