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Legal challenges in the adoption of bystander approaches

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Bystander Approaches to Sexual Harassment in the Workplace

Part 5: Legal and organisational implications of bystander approaches for sexual harassment

Having discussed current bystander intervention approaches to violence prevention, the paper now considers some of the organisational and legal challenges in the adoption of bystander approaches.

The spectre of vicarious liability means that employers must ensure that they recognise and respond appropriately to sexual harassment. In the case of bystander interventions, this raises important questions in terms of where an organisation’s legal responsibilities and liabilities begin and end. This section discusses to what extent information communicated by bystanders constitutes organisational knowledge and therefore amounts to a responsibility to investigate or otherwise deal with the problem. It also addresses the potential for victimisation of bystanders which was an issue raised initially in the earlier discussion of whistle blowing. Finally, this section addresses the potential for organisations to mobilise bystanders in raising awareness of and intervening in sexual harassment in a way that is consistent with workplace health and safety frameworks and legislation.

5.1 Vicarious liability and bystanders in positions of organisational authority

Section 106 of the Sex Discrimination Act and state anti-discrimination legislation in Australia references vicarious liability, whereby organisations will be held liable for an employee or agent’s discriminatory conduct unless they can establish they took all reasonable steps to prevent the employee from doing the acts[233] (see Markert[234] for a cross-national comparison of sexual harassment law). Australian courts have been found to take a broad interpretation in assigning vicarious liability, including with respect to sexual harassment which occurs off-duty such as at Christmas parties and other social functions and off-premises such as in work carparks, at work-related conferences and on field trips.[235] A decision of the Federal Magistrates Court in Lee v Smith & Ors[236] confirms the broad scope of vicarious liability under federal discrimination laws of an employer for acts by employees outside the workplace.[237] The case is significant given the nature of the act for which the employer was held vicariously responsible – a rape – and the context in which the act occurred – a private, social function.[238]Bystanders may make a formal complaint to their employer indicating that they have observed sexual harassment. However, there are myriad of factors which act as powerful deterrents to making a formal report such as: fear of job loss, fear of retribution or retaliation, reluctance to be viewed as a victim, low expectations of procedural justice or the belief that the harasser will not receive any penalty, lack of knowledge of rights and lack of access to external supports such as unions or counselling professionals. Or they may make an informal report, which may include a request that no action is taken in response to the notification. Given, the broad manner in which the court has interpreted the vicarious liability provisions contained in anti-discrimination legislation, it is likely that an employer would be placing itself at risk of liability for discriminatory conduct if it acceded to a bystanders request to do nothing in relation to discriminatory conduct.

There are also related prohibitions to aiding and abetting in section 105 of the Sex Discrimination Act which makes it unlawful for a person to cause, instruct, aid or permit another person to do an act that is unlawful under Division 1 or 2 of Part II of the Act. This does not necessarily require actual knowledge of the unlawfulness of the acts in question, but does require some actual or constructive knowledge of the surrounding circumstances by the respondent.[239] In Elliott v Nanda[240] there was evidence indicating that the Commonwealth Employment Service knew that several young women placed with the respondent had made allegations to the effect that they had been sexually harassed in a manner that would constitute discrimination on the ground of sex. Moore J held that the CES had permitted the discrimination to take place as the number of complaints of sexual harassment from that workplace should have alerted the CES to the distinct possibility that any young female sent to work for the doctor was at risk of sexual harassment and discrimination on the basis of sex.[241]

5.2 The victimisation of bystanders in sexual harassment cases

Encouraging bystanders to report or intervene in sexual harassment may also be relevant to vicarious liability provisions insofar as the risks of victimisation to the bystander. That is, if organisations encourage witnesses or supporters to report sexual harassment, or if they encourage or even require, as they sometimes do, that bystanders give evidence in an investigation, they also risk exposing those bystanders to similar retaliatory behaviours as direct targets often experience. Risks to bystanders of victimisation in sexual harassment cases are highly consistent with those found in studies of whistle blowers cited earlier and, just as in the context of whistle blower legislation, frequently occur despite specific provisions in the Sex Discrimination Act that prohibit victimisation in some circumstances.[242] The victimisation of whistle blowers has been described as vilification and the consequences, in terms of character assassination and professional opportunities, as follows:

They suffer a loss of reputation. Their motives, character, mental stability and trustworthiness become the subject of aspersions. They are often described as disgruntled troublemakers, people who make an issue out of nothing, self-serving publicity seekers, or troubled persons who have distorted and misinterpreted situations due to their own psychological imbalance / irrationality... [They may be] fired or possibly black-listed so that they cannot continue to work in their profession. Those who are not fired may be transferred with prejudice, demoted, given less interesting work (or sometimes no work at all)...They may be denied salary increases. Letters of recommendation will subtly or overtly mention the trouble caused by this employee’s actions. Where possible their professional competence will be attacked. Certainly, their professional judgment will be impugned.[243]

Victimisation can be perpetrated by the harasser themselves, or by co-workers who support the harasser, particularly if either of these parties are in organisational positions senior to the bystander or have power over them. In short and similarly to situations involving intimate partner violence or sexual assault, it may not always be safe to intervene. Thus, organisations which encourage bystanders to be proactive in responding to sexual harassment should recognise such legal risks. Further, although legislation protecting whistle blowers exists already in Australia, organisations should expressly communicate to employees that bystanders who report complaints will be protected from victimisation and publicly demonstrate disciplinary measures if victimisation does occur.

Although there do not appear to be any equivalent Australian legal precedents, in a recent US legal case, Crawford v. Metropolitan Government of Nashville and Davidson Country,[244]), a woman made a retaliation[245] charge against her employer after her employment was terminated following allegations of embezzlement. She had worked for the organisation for 30 years but had recently contributed to an investigation of sexual harassment by a fellow employee against a senior manager in the company. When questioned in the internal investigation, Crawford reported that she too had been sexually harassed by the alleged perpetrator. However, she did not make a direct claim of sexual harassment. The lower courts initially agreed with the employer’s arguments that since she had never made a claim of sexual harassment, the law did not protect her. However, the US Supreme Court overturned this ruling saying that the anti-retaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. However, the judge also raised the issue of whether the precedent might open the door to victimisation claims by fired employees who had expressed opposition in an informal ‘water cooler’ chat but whose employer only became aware of the opposition later. The judge reasoned that such protections should only apply when the opposition was active and purposive.

5.3 Mobilising bystanders within workplace health and safety legal frameworks

A number of studies and commentaries have called for extending the general obligations that apply with respect to maintaining and ensuring a healthy and safe work environment, to a positive duty to provide an environment free from sexual harassment.[246] This argument rests on the idea that an environment free from sexual harassment can be regarded in analogous terms to an employers’ common law duty to take reasonable care of their employees and that sexual harassment is as much an industrial issue as any other workplace hazard.[247] Yet the general manner in which the aims and goals of workplace health and safety legislation have been framed has been predominantly concerned with the physical structure and environment of the workplace, which is apparent in the conventional focus on issues such as providing protective clothing and equipment, guarding dangerous machines and minimising exposure to dangerous chemicals and other substances and the impact of this on occupationally-related illnesses and accidents.[248] Meanwhile, although it has been argued for some time that workplace sexual harassment is a workplace health and safety problem and that theoretical explanations of occupational injury need to explicitly recognise gender,[249] psycho-social hazards have historically been overlooked, as have problems with the way work is organised and structured.[250] More recently, principles which underpin collective workplace health and safety strategies recognise not only the physical workplace and management issues, but also an acknowledgement that hazards may be generated from the way people relate to one another and that harm may arise from singular or combined psychological, biological or socio-cultural factors.[251]

One of the benefits of considering sexual harassment within a workplace health and safety framework is that collective strategies, including bystander interventions, have been well established in this field compared to those which may be effective in addressing gendered mistreatment at work (or other concerns which predominantly impact women or other disadvantaged groups). Another advantage is that workplace health and safety is generally considered seriously by organisations and governments, as evidenced by the host of legislation, measures, agreements, enforcements and indicators which are associated with it. Therefore, including sexual harassment within the scope of workplace health and safety has the potential to leverage off what is considered a high-profile workplace concern. For example, safety has been recognised as a key component of workplace reform, with mechanisms designed to achieve this – benchmarking, total quality management and best practice – being heavily asserted in management and government literature.[252]

The workplace health and safety literature recognises the importance of mobilising the cooperation and involvement of all workers to achieve and maintain a safe work environment. Further, the meaningful participation of workers needs to occur not only in the form of direct involvement in safety, which is often informal, but also in decision-making.[253] Several evidence-based techniques have been identified to increase the occurrence of safe behaviour and/or decrease high risk behaviours.[254] Techniques which potentially involve bystanders are designed to:

  • Encourage interpersonal observation and feedback whereby employees learn to systematically observe safety-related work practices of others
  • Foster self-esteem, belonging and empowerment by developing cohesiveness amongst work groups through group goal-settings, decreasing the frequency of top-down directives and using self-managed work teams
  • Enhance empowerment by offering frequent rewarding/corrective feedback for process activities rather than only for outcomes (such as injury statistics)
  • Shift safety from a priority to a value by linking safety with all job aspects including productivity, quality, profitability or efficiency.[255]

A recent and interesting study explored how organisational initiatives designed to enhance safety and effectiveness in high safety risk environments (offshore oil platforms) unintentionally released men from social imperatives towards manly behaviour.[256] The findings may be significant in terms of extending organisational processes developed for safety to bystander interventions for sexual harassment. It revealed that several components of the organisations’ safety cultures, while also relevant to ensuring physical safety, were particularly instructive in terms of disrupting the gender status quo which often supports sexual harassment. The safety interventions were directed towards a number of goals, including (a) promoting a collectivist culture (such as valuing safety over production, providing incentives for reporting accidents and safety concerns and encouraging management to be interested in safety); (b) re-defining competence away from infallibility, emotional detachment and aggression; and (c) orientating work towards learning (such as avoiding blame and cover-up and emphasising learning over performance).[257] The conclusions of the study, which were extrapolated to white-collar jobs in mainstream organisations, as well as workplaces characterised by high safety risks, argued that the adoption of certain safety strategies could disrupt men’s efforts to prove themselves on masculine dimensions and in the process, create the requisite cultural conditions for ‘undoing gender’.[258]

[233] A Newton, ‘Beyond the common law: employer held responsible for rape by employee – is this a new frontier in vicarious liability?’ (2007) 45(6) Law Society Journal, p. 38.

[234] J Markert, ‘The globalization of sexual harassment’ (2005) 9 Advances in Gender Research, pp. 133-160.

[235] P Easteal and S Saunders, ‘Interpreting vicarious liability with a broad brush in sexual harassment cases’ (2008) 33(2) Alternative Law Journal, pp. 75-79; B Hely, ‘Open all hours: the reach of vicarious liability in 'off-duty' sexual harassment complaints’ (2008) 36(2) Federal Law Review, pp. 173-207; P McDonald and K Dear, ‘Discrimination and harassment affecting working women: evidence from Australia’ (2008) 22(1) Women’s Studies Journal, pp. 37–48.

[236] Court in Lee v Smith & Ors (2007 FMCA 59)

[237] A Newton, ‘Beyond the common law: employer held responsible for rape by employee – is this a new frontier in vicarious liability?’ (2007) 45(6) Law Society Journal, p. 38.

[238] Newton A, as above.

[239] Australian Human Rights Commission, Federal Discrimination Law (2011), pp73-74. At http://www.hreoc.gov.au/legal/FDL/index.html (viewed 1 June 2012).

[240] Elliott v Nanda (2001) 111 FCR 240

[241] Elliott v Nanda (2001) 111 FCR 240, 294-295 [169] cited in Australian Human Rights Commission, Federal Discrimination Law (2011), pp73-74. At http://www.hreoc.gov.au/legal/FDL/index.html (viewed 1 June 2012). .

[242] Allegations of victimisation can also be handled as claims of unlawful discrimination under s94 of the Sex Discrimination Act. This provision is very broad and covers not just people who make complaints to the Commission or have been involved in the complaint handling process at the Commission, but also covers a person who has been subjected to a detriment because that person has asserted rights on their own behalf or on behalf of another person under the Sex Discrimination Act or the Australian Human Rights Commission (1986) (Cth)Act (94(2)(f)) or has made an allegation that a person has done an act that is unlawful under the Sex Discrimination Act (94(2)(g)).

[243] N Dandekar, ‘Contrasting consequences: bringing charges of sexual harassment compared with other cases of whistleblowing’ (1990) 9(2) Journal of Business Ethics, p. 152.

[244] Crawford v. Metropolitan Government of Nashville and Davidson Country, Tenn., 129 S. Ct. 846 (2009)

[245] Retaliation provisions in US law are similar to those addressing victimisation in the Australian Sex Discrimination Act. [246] T MacDermott, ‘The duty to provide a harassment-free work environment’ (1995) 37(4) Journal of Industrial Relations, pp. 495-523.

[247] T MacDermott, as above.

[248] T MacDermott, as above.

[249] J Lucas, ‘Sexual harassment, current models of occupational health and safety and women’ (1991) 13 Australian Feminist Studies, pp., 59-70.

[250] R Johnstone, ‘Improving worker safety: reflections on the legal regulations in OHS in the twentieth century’ (1999) 15 Journal of Occupational Health and Safety – Australia and New Zealand, pp. 521-526.

[251] A Makin and C Winder, ‘A new conceptual framework to improve the application of occupational health and safety management systems’ (2008) 46 Safety Science, pp. 935-948.

[252] P Bohle and M Quinland Managing Occupational Health and Safety. A Multidisciplinary Approach (2000).

[253] P Bohle and M Quinland Managing Occupational Health and Safety. A Multidisciplinary Approach (2000).

[254] E Geller, ‘Ten principles for achieving a total safety culture’ (1994) 39(9) Professional Safety, pp.18-24.

[255] E Geller, ‘Ten principles for achieving a total safety culture’ (1994) 39(9) Professional Safety, pp.18-24.

[256] R Ely and D Meyerson, ‘An organizational approach to undoing gender: The unlikely case of offshore oil platforms’ (2010) 30 Research in Organizational Behavior, pp., 3-34.

[257] R Ely and D Meyerson, ‘as above.

[258] R Ely and D Meyerson, as above.