Posts

Sexual Harassment – A Workplace Minefield

/in , /by

What is Sexual Harassment?

Sexual harassment is unwanted and unwelcome behaviour of a sexual nature. State and Federal legislation make it unlawful to sexually harass another person in the workplace. Sexual harassment takes place when a person makes an unwelcome advance, or engages in other unwelcome conduct of a sexual nature in relation to another person in circumstances, where a reasonable observer would have anticipated that the person would be offended, humiliated or intimidated.

Sexual harassment can occur as a result of a single incident or a pattern of behaviour. It can be committed regardless of whether or not the behaviour concerned was intended to cause offence, humiliation or distress. Sexual harassment encompasses a broad range of physical, written or verbal behaviour, which can include, but is not limited to the following:

  • Unwelcome physical contact or attempted physical contact, e.g. kissing, touching (some of which may constitute assault);
  • Insinuations about an individual’s private life;
  • Insults or jokes of a sexual nature;
  • Unwelcome sexual advances, suggestions, innuendoes or requests for sexual favours;
  • Offensive printed material; or
  • Offensive information transmitted electronically, e.g. via email or the internet.

The Law

Employer Found Vicariously Liable – Informal Complaint of Sexual Harassment

In brief

A 2009 decision in the Queensland Anti-Discrimination Tribunal further highlights an employer’s responsibility to act on complaints of sexual harassment, even if the complainant asks for no action to be taken.

How does it affect you?

Employers should confirm, as part of a thorough EEO training program, that they have a responsibility to act on any complaint of harassment or discrimination in the workplace that is brought to their attention.

This responsibility extends beyond formal complaints and will even arise in circumstances where a complaint is raised in an informal way.

Background

A female sales employee complained that her supervisor repeatedly asked her out on dates, asked her for cuddles and hugs, asked her if she was wearing any underwear, put his hand on her bare leg while she was driving a forklift, and on one occasion kissed her through the open window of a car. Although these complaints were made to a senior manager, the complainant initially declined the senior manager’s offer to speak to the supervisor, claiming that she would handle the matter herself.

The behaviour continued, and the woman eventually made a formal complaint. An investigation largely conducted by the same senior manager ,determined that the complaint was unsubstantiated. The complainant then brought an action in the Queensland Anti-Discrimination Tribunal under the Anti-Discrimination Act 1991 (Qld).

Finding of vicarious liability against the employer

In finding the employer vicariously liable for the sexual harassment, the tribunal noted that: ‘despite the existence of extensive EEO policies, the employer had failed to ensure ‘that persons employed by it as supervisors fully appreciate that it is their primary responsibility to … provide a work environment free from harassment’; from the moment the first informal complaint had been made to the senior manager, it had become his responsibility ‘to take control of the situation and take the matter further – either to protect the complainant from the [supervisor] or to show that the complainant was a person who makes false complaints against a co-worker the respect to be accorded to the wishes of complainant should be subservient to this overriding responsibility; a the senior manager should have ensured that the complainant’s supervisor could not continue with the alleged behaviour by, for example, physically redeploying the two employees to different parts of the business.

The tribunal ordered the employer, as well as the supervisor, to pay $23,425 in damages and to provide every member of employer’s board of directors with a copy of the decision.

Could you afford to have this happen to you or your organisation??

Previously in the News

David Jones Debacle

By now, it is unlikely that you haven’t come across at least one of the many news reports about the sacking of David Jones CEO, Mark McInnes after admitting he acted inappropriately towards a staff member, in a manner “unbecoming of the high standard of a chief executive officer.”

From news reports, it appears this was not a one-off for McInnes. It’s been reported he would regularly target young employees with gifts and try to sweep them off their feet. He was part of an entrenched ‘boy’s club’ culture at DJs, all the more remarkable for a business with a mainly female workforce that sells to high end female customers. It appears that for McInnes, this incident was just part of a broader pattern of behaviours.

“I’m staring at your t*ts” – Why Sexual Harassment Continues in the Workplace

Sexual harassment goes to a range of issues. First and most obvious is the treatment of women. Sydney Morning Herald reporter, Fenella Souter describes one incident in a law firm where a woman (‘Rebecca’) wanted to advance in the company. To do that she would watch cricket or tennis with the men in the boardroom, swear, talk badly about people, drink with the men and not leave work early. She was ‘one of the boys’. And then came the incident.

At a commemorative dinner recently, she was fixing her collar and caught one of the senior partners staring at her across the table. “Stop staring at my collar”, she chided. “I’m not staring at your collar,” he said. “I’m staring at your tits.” She was taken aback, but not astonished. “There’s a steady stream of comments like that in the firm”, she says.

Usually the women try to ignore it or take it as a joke. “Mostly, the men don’t mean anything by it. They just say the first thing that comes into their heads,” Rebecca explains mildly. Does she ever object? ‘One time I did say something and afterwards I walked into the boardroom and the managing partner said, “Uh-oh, here she comes, the fun police.” It’s like you’re some sort of extremist. I also want to become an equity partner of the firm one day and I worry that they would sit there and say, “Well, you know, Rebecca is a bit of a femo. If we made her a partner, she might start throwing her weight around and saying we have to do everything differently.” So the more I can play the game, the better it is for me. I know that sounds like a complete sell-out.’

Yet even if Rebecca plays the game, her chances of becoming a partner are slim, by the mere but inescapable fact of her gender. While almost 60 per cent of law-school graduates in Australia are female, and a great many are the brightest graduates, only an estimated 16 to 18 per cent of partners in major law firms are women and only three per cent are managing partners or CEOs in top law firms. (This despite the fact that women have formed 50 per cent of graduates for the past 15 years at least.)

If you have encountered any of these, or similar issues in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au

Sources:
The Age- http://blogs.theage.com.au/executivestyle/managementline/2010/06/21/sexualharassme.html
Allens Arthur Robinson Publications June 2009 by Senior Associate John Naughton,
The Sydney Morning Herald. Article ‘The Only Way is Up’ by Fenella Souter 1 May 2010

Age Discrimination in the Workplace

/in , /by

Age Discrimination in the Workplace – Too old to work?

Ageism is essentially bias against a person or group on the grounds of age. An ageing society means that greater numbers of older people may want, or need to remain in the workforce for longer periods. However, older people often encounter barriers to full participation in society. This is most marked with respect to employment.

In the workplace, we need age diversity to profit from the invaluable contributions that each age group can offer. Ageism is present in every stage of employment, from recruitment and selection to terminations.

It seems that ageism permeates our culture and society. It is exacerbated by negative connotations in our language, literature and media. Myths and stereotypes about older people in the workplace continue to present a barrier for older workers in obtaining and retaining employment. Some stereotypes tend to present older workers as being; “unadaptable to change”, “set in their ways”, “technologically illiterate”, “dependent” or “irrelevant.”

Despite an increase in mature age workers in the workforce over the last two decades, the biggest hurdle that these individuals face continues to be discrimination, with some essentially coerced out of the workforce. If older workers are perceived as less productive and are forced to retire, the idea that older workers are not productive, is reinforced and further perpetuates discrimination.

What are the Statistics?

According to a 2004 survey conducted by the Australian Bureau of Statistics ‘Mature Age Person Statistical Profile’, out of 1500 people surveyed aged between 45 and 74, 67% had concerns about the prospect of re-entering the workforce or advancing in their current jobs. In 2004, close to one-third (32%) of people participating in the labour force were aged 45-64 years, up from 24% in 1983. This increase not only reflects larger numbers of people entering this age group as the baby boomers age, but also changes in labour force participation over the period.

Another 2004 survey conducted by Hudson Global Resources and Human Capital Solutions, also found that less than one-third of organisations proactively seek to attract and retain mature age workers.

What are the Age Discrimination Laws?

All States and Territories have legislation in place, which, at least in theory, protects people from discrimination on the grounds of age. In 2004, the Federal Government passed the Age Discrimination Act. The act seeks to protect the interests of both younger and older Australians, and covers areas such as; employment, education, provision of goods and services and facilities and accommodation etc.

In Western Australia, the Equal Opportunity Act 1984 (WA) covers grounds of unlawful discrimination such as; sex, sexual orientation, marital status, pregnancy, race, religious or political conviction, age, racial harassment, impairment, family responsibility or family status, gender history.

Case Law

Even though potential employers cannot advertise age preferences for jobs, some advertisements still provide numerous clear messages about the preferred age range, through the use of age specific descriptors, such as ‘a young, exciting environment’ etc. While such language or criteria can be used legitimately for employers to find a suitable employee, they can also hide ageist biases.

For example, in Hopper & Others v Virgin Blue Airlines Pty Ltd [2005] QADT 28, the Queensland Tribunal found that Virgin Blue had discriminated against eight female complainants, who had applied for the positions of “cabin crew member”, because they were over the age of 35. While the criteria of ‘Virgin Flair’ did not contravene anti-discrimination laws per se, the assessors’ application of their preference for younger people, was more in line with the concept of ‘Virgin Flair’, described as – ‘a desire to create a memorable, positive experience for customers: the
ability to have fun, making it fun for the customer.’

In Gilshenan v P.D. Mulligan (Newcastle) Pty Ltd (1995) EOC 92-781 a 64-year-old butcher was transferred from the butcher’s shop to a sausage-making factory. He alleged that the transfer was intended to induce him to retire; the respondent however claimed that he was too slow at his job and was not fulfilling the inherent requirements of the position. The Tribunal found that he was competent at his previous position, and ruled that the respondent had discriminated against him on the basis of his age.

Similarly in Goodworth v Marsdens Motors Pty Ltd (No 1) [1996] NSWEOT; EOC 92-837. Ms Goodworth was forced to retire after six years of employment with the respondent. The company claimed she was inefficient, incompetent and the office was overstaffed. The Managing-Director however purportedly told a trainee that Ms Goodworth was ‘older and her health is not good. We want someone younger. You can do the same job that she did.’

Skinner v Lightning Bolt Pty Ltd [2001] EOC 93-167. The complainants, aged 58 and 57 were laid off after three months of employment. The respondents claimed there was not enough work for them due to a down turn in trade, as a large client had gone into liquidation. When one of the complainants returned to the respondent to get a reference, he noticed two younger men aged 36 and 21 doing the jobs of the two complainants. The Tribunal found that there was no shortage of work for the complainants, and that they were in fact discriminated against because of their age.

Solutions to Ageism in the Workplace

While a well implemented ageing strategy will improve morale, teamwork, cooperation and productivity across all levels of the organisation, workplace policies must be framed carefully. Ageism is just one of the many challenges organisations must address in order to embrace one of the only remaining segments of the workforce in which participation can be increased.

The following HR practices are important;

1. Introduce measures to combat ageism such as education and awareness programs;
2. Restructure work practices to accommodate emerging population trends;
3. Train staff to enhance the organisational skill set; and
4. Train managers in age management strategies and age discrimination.

Just as organisations put in place strategies and policies to address issues such as workplace bullying or harassment, employers must consider the same in order to prevent age discrimination from gaining a foothold in their workplace.

Tailoring policies and practices for age diversity is an important emphasis in the management of staff, and can be a demonstration of management and organisational flexibility. Organisations that discriminate on the basis of age, are limiting their chances of recruiting and retaining the best people.

As people live longer, engage in lifelong learning and pursue intellectual and skill growth throughout life, diversity in the workplace will become more common. In their quest to open doors to employment, development and opportunities for all working people, human resources specialists should not be constrained by age issues.

If you have any questions regarding issues of ageism, or other concerns in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au

References:

http://www.smartmanager.com.au/web/au/smartmanager/en/pages/111_age.html
http://www.austlii.edu.au/au/journals/QUTLJJ/2007/6.html
http://au.hudson.com/documents/emp_au_18_august_2004.pdf
http://au.hudson.com/documents/emp_au_Whitepaper_ageism.pdf
[/vc_column_text][stm_post_bottom][/vc_column][vc_column width=”1/4″ offset=”vc_hidden-sm vc_hidden-xs”][stm_sidebar sidebar=”527″][/vc_column][/vc_row][vc_row full_width=”stretch_row” el_class=”third_bg_color” css=”.vc_custom_1451889219674{margin-bottom: -60px !important;}”][vc_column][vc_cta h2=”Looking for a First-Class Business Plan Consultant?” h2_font_container=”font_size:20px|color:%23000000|line_height:24px” h2_use_theme_fonts=”yes” shape=”square” style=”flat” add_button=”right” btn_title=”get a quote” btn_style=”flat” btn_color=”theme_style_2″ btn_align=”right” btn_i_align=”right” btn_i_icon_fontawesome=”fa fa-chevron-right” btn_add_icon=”true” btn_button_block=”true” el_class=”third_bg_color” css=”.vc_custom_1451762600590{margin-bottom: 0px !important;}” use_custom_fonts_h2=”true”][/vc_cta][/vc_column][/vc_row]