Sexual Harassment – A Workplace Minefield

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