#MeToo and sexual harassment in Australian workplaces

The #MeToo movement and its focus on exposing the prevalence of sexual harassment in the workplace continues to resonate loudly in 2018.

What started in 2017 with allegations being made against Harvey Weinstein, then set off an avalanche of sexual harassment allegations being made against high profile people both in Australia and overseas. Further momentum was gained when high profile women in the entertainment industry in the United States expressed their solidarity with women in other industries suffering sexual harassment and set up a legal defence fund under the banner #TimesUp. One year on, this mass movement has seemingly transformed into a desire to not only hold those accused of sexual harassment to account but to also see a fundamental change in workplace cultures.

While sexual harassment in the workplace is far from being a new issue, this momentum and accompanying increased public awareness means that organisations are seeing a spike in sexual harassment and related complaints being made by employees.

Recently it has also been announced that the Australian Human Rights Commission (Commission) will conduct a national 12 month inquiry into sexual harassment in Australian workplaces, with the Federal government pledging to contribute funding towards the inquiry. The Commission has also now released the results of its fourth national survey on sexual harassment in Australian workplaces, which we outline below.

This all means that employers need to prepare for increased scrutiny not only of the content and type of complaints being made, but also of their responses to those complaints. While in the past legal proceedings have been commenced and significant media coverage may have been garnered and used by one or more parties as an adjunct to those proceedings, we are now seeing a move to individuals raising complaints first in the media not only prior to commencing proceedings but in some cases prior to raising those issues internally. This approach can make it particularly difficult for organisations to then properly respond to those complaints.

To help with this, we explore some of the challenges that employers can face when dealing with sexual harassment complaints in the post-Weinstein era and some of the recent findings about Australian workplaces.

Historical claims

As the #MeToo movement has created space to talk about sexual harassment, so too are employees becoming more comfortable with raising issues, including past issues.

While time limits can apply to employees bringing discrimination and harassment claims in a tribunal or court, there is no time limit by which an employee needs to raise an issue internally or which operates in relation to employers investigating claims.

Employers should therefore be aware of the additional challenges that may arise when dealing with historic claims. This includes that witnesses and/or the person against whom the allegations are made may no longer be employed by the organisation.

Additionally, as memories fade with time, even if relevant witnesses are still employed with the organisation, their recollections may be hazy and it may be harder to find corroborating evidence. This could stymie the ability of human resources to fully investigate the matter and ultimately to determine the appropriate action to take.

Employee reluctance to make a formal complaint

Another challenge for employers is that those who experience sexual harassment in the workplace may still wish to “stay silent” to some degree about their experiences. Even if an employee does raise an incident with their employer’s human resources department, they may be reluctant to “name names” and formalise their complaint.

In our experience, this is common and is a view supported by the results of the Commission’s recent national survey (see the key findings below). Employees may have many reasons for not wanting to make a formal complaint, such as fear of retribution and concerns about the impact that making a complaint might have on their career prospects.

Employees may also be concerned about the ability of the HR team to be impartial, that the HR team may not be willing to investigate complaints made against senior executives, or that they may be overly focussed on seeking to maintain a continuing working relationship with all concerned. Employees will often look to how past matters may have been dealt with internally as a guide as how any issues they raise may be handled.

Importantly, employers need to balance this employee reluctance with their own duty of care under safety legislation and the need to take positive steps to prevent harassment under anti-discrimination legislation. Once an employee has raised issue of alleged sexual harassment, the employer is on notice that there may be an ongoing risk to safety of employees in the workplace and will need to take steps to mitigate that risk.

Reputation and community expectations

Employers must also consider the reputational impact – a recent survey conducted in the US found that 87% of Americans now favour zero tolerance of sexual harassment. While a similar poll has not to our knowledge been undertaken in Australia, given the spread of the #MeToo movement to our shores, there is no reason to think that Australian views will be dissimilar.

Community expectations as to action are now different, and as public awareness of the prevalence of sexual harassment increases and the disdain for excuses of ‘that’s just how it works’ or ‘we didn’t know’ rises, so does the imperative for employers to take action against perpetrators of sexual harassment.

National inquiry into sexual harassment in Australian workplaces

The Commission has launched an inquiry into sexual harassment in Australian workplaces. The focus of the 12 month long inquiry is on the nature and prevalence of sexual harassment, the drivers of this harassment, and appropriate measures to address sexual harassment in Australian workplaces. As the focus is on systemic issues, the inquiry will not involve investigating or making findings about individual allegations of sexual harassment. The full terms of reference for the inquiry can be found here.

The Commission will build on the findings from its own national survey into workplace sexual harassment (see the key findings below), together with submissions from interested parties and public consultations to be held in all Australian capital cities and a number of regional centres, in producing its report. The report is expected to deliver findings broken down to an industry basis, and will identify the drivers of these behaviours, and make recommendations for changes to the existing legal framework.

Three years after the release of its report, the Commission will conduct an assessment of any changes in the prevalence, nature and reporting of sexual harassment in Australian workplaces since its inquiry, and make any further recommendations it considers necessary to address sexual harassment in the workplace.

Results of the fourth annual survey into sexual harassment in Australian workplaces

Between April and June 2018, the Commission conducted a national survey to investigate the prevalence, nature and reporting of sexual harassment in Australian workplaces and the community more broadly. The survey was conducted both online and by telephone with a sample of over 10,000 Australians.

There are some interesting (and in many cases very troubling) key findings from the survey:

• 71% of Australians have been sexually harassed at some point in their lifetimes;
• 85% of Australian women and 56% of Australian men over the age of 15 have been sexually harassed at some point in their lifetimes;
• almost two in five women and just over one in four men have experienced sexual harassment in the workplace in the last five years;
• rates of sexual harassment were highest among people aged 18 to 29 years;
• individuals who identify as being LGBTI+, who are Aboriginal or Torres Strait Islander, or who have a disability are also more likely to have been sexually harassed in the workplace;
• perpetrators of workplace sexual harassment are overwhelmingly male;
• rates of workplace sexual harassment are notably high in some industries, including information, media and telecommunications; arts and recreation services; electricity, gas, water and waste services; and retail trade;
• a substantial proportion (just over two in five) of workplaces where the sexual harassment occurred had an equal mix of female and male employees;
• fewer than one in five people made a formal report or complaint in relation to workplace sexual harassment;
• almost one in five people who made a formal report or complaint were labelled as a troublemaker, were ostracised, victimised or ignored by colleagues, or resigned;
• in one in five cases, the formal report or complaint brought no consequences for the perpetrator, and where there was some consequence, it was most commonly a warning; and
• while more than one in three people have witnessed or heard about the sexual harassment of another person at their workplace in the past five years, only a third of them took action to prevent or reduce the harm of this harassment.

If there was any doubt, then the results of this survey should make it clear that sexual harassment in Australian workplaces is widespread and pervasive, not isolated to some types of workplaces or industries, and it is not an issue that any employer can avoid or overlook any longer. The full results of the survey can be found here.

What can employers do?

We recommend that when dealing with historical complaints or claims, employers should consider the following:

1. Ensure that you treat the complaint seriously and with sensitivity and compassion. It is widely known that victims of harassment may not report an incident at the time it occurs for a variety of reasons. It is important that you do not make assumptions about the reason for the delay and treat the report as you would if it was made when the incident occurred.
2. Provide support and assistance to the employee making the complaint. This includes ensuring they have access to your employee assistance program, or if you do not have one, consider covering the costs of private counselling.
3. Listen to the wishes on the employee, especially where the employee does not want the complaint formalised. The concerns that often lead to a reluctance in reporting sexual harassment are demonstrative of the importance of dealing with complaints empathetically and protecting confidentiality. While for many organisations employees will and do feel comfortable raising matters with HR, each complaint provides an opportunity to promote a culture where there is trust in you as an employer so that employees will continue to bring issues forward.
4. Make “haste slowly” and take care with any investigation. Sexual harassment complaints can be complex and require more than a knee-jerk reaction, especially given the increased media scrutiny and pressure to deliver an outcome and definite response. Additionally, employers need to afford procedural fairness to the person against whom the allegations are made and therefore should take a measured and transparent response.
5. If you decide to investigate a historical complaint, then do so being mindful of the challenges and obstacles that arise due to the time that has passed. This may include contacting former employees to see if they are prepared to be interviewed and that employee’s recollections may be less clear than ideal.
6. Take each complaint or report as an opportunity to examine your policies and training to proactively identify and address any underlying cultural issues or hostile behaviours that might be present in your workplace. Once identified, employers should take proactive steps to rectify those cultural problems. For example, if innuendo and offensive jokes are commonplace in the workplace, you should send a clear and unequivocal message that such behaviour is unacceptable.

More broadly, you need to do more than simply review your company harassment policies and look at the training and implementation of those policies to ensure that your employees are aware of their obligations. Fundamentally, you need to critically assess your own workplace culture and make changes to ensure that you have a culture based on mutual respect between employees.

With the national inquiry moving into its consultation phase, you may also wish to consider whether you want to take a more prominent position on workplace sexual harassment and provide a submission to the inquiry.

Gadens can assist employers to minimise the risk of sexual harassment complaints by developing discrimination and harassment policies, reviewing existing policies and processes to ensure that they are legally compliant and reflect best practice, and provide sexual harassment training for managers and employees. We would also be happy to assist any of our clients who may like to prepare a submission to the Australian Human Rights Commission inquiry.

Authored by: 
Brett Feltham, Partner
Emma Corcoran, Lawyer