Sexual harassment has nothing to do with sex. Like bullying, it’s all about power over the vulnerable. Sex is just the strategy used to get it. Companies need to have policies to address it.
Sexual harassment is unlawful under Section 28 of the Sex Discrimination Act. It can be a form of sexual assault and it is definitely, under the law, a form of sex discrimination.
And yet it continues. High profile cases like the David Jones scandal, where former chief executive Mark McIness was forced to resign after a staffer accused him of sexual harassment, turned it into a talking point in workplaces and at dinner tables across the country.
So what are the ways to deal with sexual harassment when it occurs?
Under the Sex Discrimination Act, employers might limit their liability if they can show they took “all reasonable steps” to prevent the sexual harassment occurring. These “reasonable steps” might include policies and procedures designed to create a harassment- free environment. The measures could also include procedures to deal with allegations of discrimination made by employees or customers. The policies, however, can only be effective if they are well implemented. That puts the onus on the employer to provide ongoing training, communication and reinforcement.
According to the Human Rights and Equal Opportunity Commission, every sexual harassment policy should have a strong opening statement making it clear that sexual harassment will not be tolerated under any circumstances. It should also state that disciplinary action will be taken against any employee or agent who breaches the policy. The opening statement should appear above the signature of the chief executive officer to give it credibility and maximum impact.
The policy should also have a clearly worded definition of sexual harassment and provide some examples of what could be construed as harassment that are relevant to that particular working environment.
It should make it clear sexual harassment is against the law and explain that sexual harassment is not behaviour which is based on mutual attraction, friendship and respect. If the interaction is consensual, welcome and reciprocated, it is not harassment.
The policy should state the organisation has a legal responsibility to prevent sexual harassment, because otherwise, it could be found to be liable. It should state that managers and supervisors have a responsibility to monitor the working environment, model appropriate behavior themselves, treat all complaints seriously and that they should take immediate action to investigate and resolve the matter, and refer the case to another officer if they feel they are not the best person to deal with, either because of conflicts of interest or because the case is highly complex.
It should also make it clear that staff have a responsibility to comply with the policy and that they should offer support to anyone being harassed and let them know where they could get help and advice. Staff also have to be warned about maintaining confidentiality if they provide information during the investigation of a complaint. They need to be warned that spreading gossip or rumours may expose them to a defamation action.
The policy should tell employees where they could get help. Depending on the size of the organisation and who is doing the harassing, they can be advised to approach their manager or supervisor, sexual harassment contact officer, equal opportunity employment officer, human resources manager, industrial relations manager or their union delegate. Where possible, the company should provide different contact people of both sexes. That usually makes the employee feel more comfortable.
It is not appropriate to give only one contact such as a line manager. That manager might be the alleged harasser or they might be closely associated with the harasser and therefore would not be impartial.
The policy should also tell employees that they have different ways to possibly address the problem, either through informal action such as confronting the harasser directly or making a formal complaint. Complaints need to be formally documented.
Companies not only have an obligation to staff. Having a sexual harassment policy also reduces liability if it gets to court. The David Jones case suggests that’s more likely to happen these days.
Oracle has a job on its hands
Its predicament is a reminder of the onus on employers regarding discrimination.
Industry has been rocked by the sexual harassment case at Oracle Australia which has now gone to the Federal Court. Former Oracle Australia program manager Rebecca Richardson is suing Oracle for sexual discrimination and one of the vendor’s employees, Randol Tucker, for sexual harassment. Richardson claims she was unfairly demoted after she informed the company of Tucker’s allegedly inappropriate behaviour. She is seeking $450,000 in damages. Tucker has denied the claims.
Justice Buchanan has not set a date for hearings. Instead, he has allowed an application by Oracle’s barrister Elizabeth Raper to extend the deadline for lay evidence by a month until July 22. Justice Buchanan is imploring the parties to work towards an agreement. The matter has been re-listed for further directions on August 12.
Alice DeBoos, a partner in the employee relations division of Sydney law firm Middletons, says this is very much a standard sexual harassment case. “It’s not an uncommon scenario with two senior people where there’s banter that one takes as being of a sexual nature designed to intimidate and offend and the other sees it in what can loosely be described as harmless banter”.
But she says the critical part of the case does not rest on what was actually said. Rather, it is more about whether Richardson could prove her career was damaged when she lodged the complaint. “The real issue for Oracle is not necessarily the seriousness of the actual sexual harassment but whether or not she was damaged in her employment because of the complaint she made,’’ DeBoos says.
“She alleges she was demoted from her position and she is claiming compensation in relation to loss of earnings and the detriment she suffered in relation
to her employment. And that’s where the big money will come in for Oracle. That cost her money and employment opportunities.”
In a normal court case, a person making a claim would have to prove their allegation. That means all the other side has to do is destroy its case with a strong defence.
But the onus changes in a sex discrimination case such as the Oracle matter. “In a sex discrimination [case], there is a greater onus on the company. There is a reverse onus so that Oracle will have to positively establish there were other reasons for her demotion other than her complaint of sexual harassment.”
Under the Sex Discrimination Act, the person making the allegation cannot go to court straight away. There has to be an investigation and documentation has to be provided. Then the matter goes to a conciliation hearing where the parties are brought together to try to settle the matter.
“As a general rule, lawyers are not allowed at the conciliation conference,’’ DeBoos says.
But if it is not settled at conciliation, the applicant then has the option to go to court. This was obviously what happened in the Oracle case. That in itself is unusual because, as DeBoos says, most cases are resolved during conciliation.
“If she gets over the line and the court agrees she suffered sexual harassment, the company will have to prove it took all reasonable steps to prevent [discrimination]. One of those reasonable steps will be that they trained personnel, including this fellow [Tucker], that they had grievance policies and procedures in place to deal with these sorts of complaints, and that they took adequate steps to deal with the grievance when it was first made.”
Under the law, companies like Oracle can negate vicarious liability by saying they took these “reasonable steps” as required in the Act, to stop the harassment from happening.
But it’s not a get out of jail card. More than likely, the company will still have to pay some sort of compensation if the court finds there was harassment. Still, the amount of money might not be as high if they can prove they had taken these “reasonable steps”.
“Quite often what happens is that companies say when it gets to a hearing that we took all reasonable steps to deal with this bloke and he still carried on in this way so we are washing our hands of him,’’ DeBoos says.
“In those cases, the court will find there will be individual liability. But it is extremely rare, in fact I can’t think of a case where it happened, that a company completely negates vicarious liability. It’s extremely rare that they would be able to absolve themselves of any liability whatsoever. It’s unlikely they let the company off the hook entirely.
“It is reasonably common to have individual liability as well as some liability on the part of the company. The judgment would read that the person might have to pay a greater percentage than the company.”
So how much money would the applicant get?
“Generally speaking, it would involve some monetary payment to the applicant. That would be prepared in a deed of release that would usually have terms of confidentiality attached to it. In my experience, monetary settlements are reasonably low in this jurisdiction except where the person involved was highly remunerated.”
But to reduce the liability, she says, the company has to do more than show it had a policy. It would have to show that there was training and that the perpetrator had been spoken to.