A Bad Business
(Review of sexual harassment in employment complaints 2002)
Foreword
In a modern workforce where men and women work side by side it is important that employers protect their employees from unwanted behaviour that is not only harmful to the employee involved but also unprofessional and unproductive for the workplace. Sexual harassment is one form of unwanted behaviour that attempts to exclude individuals from the workplace by focusing on the sex of the person involved. Sexual harassment can happen in many different situations but overwhelmingly the complaints we receive involve the workplace. Harassment, bullying and exclusion may also be motivated by and focused on other characteristics of a person such as race, culture or disability. It can also just be personal.
Ninety-five per cent of the complaints of sexual harassment in employment that we finalised in 2002 were made by women. This indicates a significant barrier to women’s full participation in the workforce. Identifying and addressing such systemic discrimination against women is essential to achieving equality between men and women.
Although Australian legislation outlawing sexual harassment was enacted almost twenty years ago and many organisations have well developed policies for dealing with it, there is still confusion about what sexual harassment is and how it should be managed by employers. Naturally all behaviour exists on a continuum of acceptability and sexual harassment may sometimes be confused with friendship, flirtation or consensual relations. However the importance of ensuring that people are treated respectfully, are able to go about their daily lives with dignity and work in a professional environment are clearly minimum standards employers and all service providers need to be able to ensure.
This review of sexual harassment complaints finalised by the Human Rights and Equal Opportunity Commission (HREOC) in 2002 was sparked by the annual complaints figures, which demonstrate that, year after year, sexual harassment remains a significant percentage of complaints. What is more, the number of complaints on this ground has increased by just over 20 per cent in the last four years.
HREOC’s complaints information is not kept for the purpose of policy research and for this reason the review has sometimes struggled with the limited data available. In addition to this, HREOC’s complaints process does not seek to find a party liable for sexual harassment, but only to conciliate between the parties. This means all information regarding the conduct must be treated as allegations rather than as proven facts. However the review’s major findings have certainly been sufficiently unambiguous to warrant drawing a number of conclusions, including the need for a national survey. HREOC has already commissioned this survey and the results will be published early in 2004.
For employers and policy makers, it is particularly worth noting that although 60 per cent of the alleged harassers were senior to the alleged victims, 40 per cent were not. In other words they were co-workers, or less often, clients or service providers. The development of sexual harassment policies and their implementation needs to take this into account; employers are liable if their policies are either inadequate or not implemented fully. In those 22 per cent of cases where the harassment continued for more than 12 months, clearly the workplace policy, or its implementation, had failed to empower its employees to seek the effective protection of the employer. The fact that most complainants (78 per cent) report the harassment within their workplace first suggests that employees expect their employers to meet a duty of care. Failure to adequately deal with a complaint contributes to the ultimate liability of an employer.
In almost all cases resolved at HREOC, the employer agreed to compensate the complainant either as well as or instead of the alleged harasser, a further price paid by employers who had failed to prevent or satisfactorily resolve the complaints themselves.
The compensation paid by employers is in addition to the organisational cost of losing the employee who has claimed harassment. Perhaps the most significant finding of the paper is that at least 77 per cent of all complainants had either left the organisation where the alleged harassment occurred or taken leave. This represents a considerable cost in recruitment, training and development, in addition to the indirect cost associated with loss of staff morale inevitably arising from unresolved disputes within workplaces. Of course, it also gives an indication of the significance of these experiences to complainants and the disruption that it is likely to have caused in their lives. The data do not allow us to conclude whether the disruption is caused by the experience of harassment or by the fact of taking action on it. I hope that the national survey to be published next year will shed light on this. Nevertheless, it is clear that those who experience sexual harassment have suffered a breach of their workplace rights.
It is also significant that sexual harassment remains an issue for business of any size; small business is so often singled out for criticism but the complaints review demonstrates that sexual harassment occurs across business. That almost a quarter (23 per cent) of reported cases involved sexual physical behaviour indicates a degree of seriousness that requires employers to act immediately.
The review should prove a useful guide for policy makers and anyone involved in people management. I commend it to leaders of business, large or small. The review also makes the case for employers to conscientiously review their sexual harassment policies and policy implementation, as well as their workplace culture. Increasingly victims of harassment will make complaints; employers who condone, ignore or fail to act against this conduct bear considerable risk.
This
first publication will be built upon by a suite of materials to be produced
in 2004. Together, I hope they will make a contribution towards the
important work of eliminating sexual harassment in Australian workplaces.
However, the real responsibility for that work lies with each of us.
Pru Goward
Sex Discrimination Commissioner
Human Rights and Equal Opportunity Commission
12 November 2003
Last updated: 12 November 2003
