By Kerriann Dear, Director of the Queensland Working Women’s Service Inc. (QWWS)
For almost 30 years sexual harassment has been unlawful in Australian workplaces, yet while it is considered pervasive,[ 1] there is little research about the specific types and patterns of behaviour that constitute this phenomena and scarce information about the efficacy of prevention strategies or the best ways to minimise harm to individuals and organisations when it invariably happens.
Sexual harassment disproportionately affects women and is recognised as a form of sex discrimination that perpetuates gender inequality. It is an impediment to women’s equal participation in the workplace. It can have serious consequences for those who experience it, including negative career-related, physical and psychological outcomes and the destruction of positive work practices leading to hostile work environments within organisations.
Recently, high profile claims and payouts of women seeking restitution from their employers for sexual harassment have gained significant media attention.
However, the $37 million claim by Kirsty Frazer Kirk against David Jones and other reported settlements at the top end of town such as Christina Rich v. Price Water House Coopers (est. $5 million) − and even the two biggest payouts for sexual harassment claims awarded by the Courts in Australia ($ 466,000 and $492,000) − are difficult to reconcile with the amount of $7000, which was the median settlement revealed in new research[ 2] for 98 claims for sexual harassment under the Sex Discrimination Act (1984) or the various state anti-discrimination provisions.
In one of the most recent decisions of the Federal Court[ 3] a female manager was awarded $18,000 for sexual harassment allegations, which were upheld. However, she then failed to secure costs for legal representation, which were in excess of an estimated $250,000.
The Working Women’s Centres (in Queensland, South Australia and Northern Territory) have been assisting women with sexual harassment complaints for almost 20 years (30 in the case of South Australia). The women who seek this kind of assistance from our centres are not highly remunerated, are often precariously employed, often don’t hold very senior positions, may be very young and inexperienced and are not endowed with financial resources to seek legal representation.
While the seriousness of many claims that reach our centres is concerning, our data reveals that the severity of the harassment does not appear to be closely linked with the likelihood of a complaint being lodged. Rather, the willingness of the individual to undergo the time-consuming, demanding and invasive process of challenging the harassment in a formal setting is likely to play a major part.
The preparation of a claim (which will typically be under anti-discrimination legislation) is time consuming, and the wait for a conciliation conference can be lengthy often exceeding 6 months and in some cases more than 12 months. The necessary focus on past events over which she had little control, including the behaviour of the harasser and the lack of support she may have received in her workplace, can be traumatic and hinder healing processes while the build up of stress and anticipation of facing the alleged harasser or a hostile employer can make the process of a formal complaint a very difficult time. It is not uncommon for women to withdraw from this process.
In our submission to the Review of the Sex Discrimination Act (2010), the Working Women’s Centres upheld that the settlement of sexual harassment complaints with small payouts appeared to provide temporary relief for individual complainants while being designed to provide an employer with indemnity against future complaints.
“Such undervalued settlements are commonly referred to as ‘go away money’ in the industrial arena. Many companies can afford to provide a limited form of compensation and make the potential legal case ‘go away’ without having to address the issue or to face up to public scrutiny. During conciliation conferences we often hear businesses referring to 'making a business or commercial decision' to offer limited compensation to make the matter 'go away’.”
The payment of small settlements by employers will often be less than the cost of implementing policies and training in the workplace to address systemic issues there. Conversely, while the presence of training and policies in workplaces may assist the employer to reduce their exposure to a claim, the concern is that the reality for many women who make complaints is that it is a traumatic experience of invalidation, lack of support and loss of career.
A significant study, Sexual Harassment in Australia[ 4] recently undertaken through an Australian Research Council Discovery Grant by Prof. Paula McDonald (Queensland University of Technology) & Assoc. Prof. Sara Charlesworth (University of South Australia, encouragingly, appears to be a comprehensive attempt to fully consider the impact of sexual harassment issues across the spectrum. This includes prevention and response in the workplace, bystander approaches, the processes of formal complaints and the short and long term impacts of experiencing workplace sexual harassment.
The research has confirmed many of the experiences of the Working Women’s Centres’ clients, who usually choose to formally complain under anti-discrimination laws. Their experiences typically include low settlement amounts, opposition of organisations to supporting employees’ claims, significant negative financial and employment implications and damaging health and well-being impacts in both the short and medium term.
This information now needs to be used to inform and improve the current legislative, policy and organisational proactivity to the issue of sexual harassment as well as to provide better support for individuals.
In attempting to improve the effectiveness of anti-discrimination law and organisational practices to eliminate sexual harassment, it must be acknowledged that despite increased community awareness of the problem since the implementation of the Sex Discrimination Act 1984, sexual harassment has been a persistent problem. It is obvious that existing complaints mechanisms and processes fail to serve as a sufficient deterrent. An analysis must also consider who has benefited from the continued violation of women’s human rights, the maintenance of sexism and the relative powerlessness women in the workplace often endure in attempting to be free of these unwanted behaviours.
Clearly there is a need for a stronger legislative mechanism in preventing and responding to sexual harassment in workplaces. Current provisions should be strengthened to allow random (or given sufficient cause, planned) audits of workplaces to demonstrate that they comply with minimum standards of education about sexual harassment and discrimination and have processes in place for handling concerns while demonstrating that when complaints have arisen they have acted in a fair and appropriate way.
More effective legislation would seek to conduct independent investigations into individual claims of sex discrimination if respondents refuse to participate in good faith or where there is suspicion of systemic sexual harassment. A further improvement would be achieved by supporting complainants with legal representation if considered warranted for complaints that are not conciliated satisfactorily. This would serve to empower victims to take more effective action against sex discrimination without having to bear the often high legal costs especially in situations such as Richardson v Oracle cited above.
It is not uncommon for complaints of sexual harassment to involve multiple issues of discrimination across different grounds (for example racialised sexual harassment). A single act, such as the proposed Human Rights and Anti Discrimination Bill, would serve to improve and simplify access for complainants. An opportunity to modernise aspects of Commonwealth human rights laws seems to have been concerningly delayed but hopefully it has not been missed.
The International Labour Organisation (ILO) highlighted the issue of sexual harassment on International Women’s Day this year, calling it an often subtle but disturbing form of aggression against women. “It’s a human rights issue, as well as a health, education and socio-economic problem. Workplace violence is a hidden problem, but with very tangible consequences.”[ 5]
The persistence of workplace sexual harassment erodes women’s dignity, equality and the decent working conditions we have fought so hard to achieve as well as damages individual well-being. It remains a feminist issue.
A case study
Abby, a 19 year old young woman working as an administrative assistant in a medium sized office, experienced ongoing sexual harassment from two men in their forties who held more senior positions. The behaviours included displaying pornography on computers in front of her, sexual comments and touching and slapping her bottom. The young woman felt completely intimidated by the behaviour, which was usually collusive by the two men.
Abby made a complaint to the HR/Office Manager in writing after another manager told her that she was going to ‘get bashed’ by the men for making a verbal complaint. Management did not support her and did nothing to respond to her grievance.
After several attempts to complain with a view to stopping the behaviour a meeting was held with Abby, which focused mostly on her work performance and failed to validate her concerns. Abby resigned, giving a month’s notice as she still felt that she should do ‘the right thing’. The employer then fired her a few days later via email. Her partner had also worked for the business and had been forced out as a result of harassment by the same two males. He made a number of complaints to the owner before resigning, but nothing was done. Abby and her partner both lost their jobs.
Abby was diagnosed by her GP as suffering anxiety/depression, migraines, insomnia, and her relationship with her partner was affected. After several months she found a new job on significantly lower pay as a receptionist, at a significantly lower skill level in a small company.
A claim made by Abby to the Anti-Discrimination Commission resulted in a settlement of $2000 and a positive statement of service as Abby lacked the resources to take the matter to hearing. The two men who had sexually harassed her have kept their jobs.
[ 1]Australian Human Rights Commission: Results of the Sexual Harassment National Telephone Survey (2012). Just over one in five (21%) people in Australia has been sexually harassed since the age of 15, based on the legal definition of sexual harassment, a slight increase since 2008 (20%). A majority (68%) of those people were harassed in the workplace. One-third of women (33%) have been sexually harassed since the age of 15, compared to fewer than one in ten (9%) men (based on the legal definition)
[ 2] Charlesworth, S., McDonald, P., Worley, A., Graham, T. & Lykhina, A. (2012). Formal Complaints of Workplace Sexual Harassment Lodged with Australian Human Rights and Equal Opportunity Commissions 1 July 2009 – 31 December 2009. Adelaide: Centre for Work + Life, University of South Australia.
[ 4]Sexual Harassment in Australia Causes, Outcomes & Prevention Project (2010-2012) Australian Research Council Discovery Grant (2010-2012). Investigators: Prof. Paula McDonald (Queensland University of Technology) & Assoc. Prof. Sara Charlesworth (University of South Australia).
[ 5](Jane Hodges, ILO Director of the Bureau for Gender Equality.)