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Behind closed doors: Approaches to resolving complaints of sexual harassment in employment

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Behind closed doors: Approaches to resolving complaints of sexual harassment in employment

Jodie Davis and Ariella Markman[1]

1. Aim of the paper

This paper looks specifically at the issue of sexual harassment in employment and approaches to resolving associated complaints that are brought before the Australian Human Rights Commission ("AHRC").

The paper will firstly consider the nature of sexual harassment complaints that come before AHRC with reference to issues of power and gender that often underpin such disputes. While the paper will also consider the potential advantages and disadvantages of various approaches to the resolution of such matters, the paper by no means aims to resolve the debate about which process is more effective to resolve sexual harassment complaints, conciliation or a court process.

The latter section of the paper will outline AHRC's approaches to conciliating sexual harassment complaints in light of issues related to the appropriateness of alternative dispute resolution in this area and with a view to opening up discussion about philosophical and practical issues that may arise in similar areas of alterative dispute resolution practice.

2. Introduction

AHRC is an independent statutory authority established by the Australian Human Rights Commission Act 1986 ("the Act"). The Act creates a statutory obligation to investigate complaints under federal human rights and anti-discrimination legislation, including the Sex Discrimination Act 1984 ("SDA"), and where appropriate, to attempt resolution of those complaints by conciliation. AHRC does not have a determinative function in relation to complaints of unlawful discrimination and therefore does not make findings of facts in complaints of sex discrimination and sexual harassment nor does it determine whether the SDA has been breached.

The Act does not require conciliation to be attempted in every complaint and where complaints of unlawful discrimination are deemed inappropriate for conciliation or are unable to be resolved by conciliation they may be terminated by the President of AHRC.[2] The complainant then has a twenty-eight day period in which to lodge an application with the Federal Court of Australia or the Federal Magistrates Court where the allegations can be heard and determined.

Conciliators at AHRC come from a variety of employment backgrounds including law, industrial relations and the social sciences and all are trained in statutory investigation and conciliation. The diversity of issues that can be considered by AHRC under the legislation it administers requires conciliators to utilise different conciliation forms to assist parties to resolve complaints, including face-to-face conciliation conferences, shuttle conferences, teleconferences and shuttle telephone negotiations.

AHRC utilises the NADRAC definition of statutory conciliation, which is:

"a process in which the parties to a dispute which has resulted in a complaint under statute, with the assistance of a neutral third party (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted and may make suggestions for terms of settlement, give expert advice on likely settlement terms and may actively encourage the participants to reach an agreement which accords with the requirements of that statute."[3]

As noted earlier, AHRC conciliators do not have a determinative role in relation to the outcome of a dispute. Rather, the conciliator facilitates discussion, provides information and assists parties to resolve the complaint on their terms. However, in contrast to many mediation models, the AHRC conciliator has a responsibility to uphold the objectives of the legislative framework in which the ADR process is operating.[4] This means that the conciliator may suggest options for resolution that further the intent of the legislation and that the conciliator will not preside over a conciliated agreement that is inconsistent with the legislation.

3. The SDA and sexual harassment complaints

The SDA makes it unlawful to treat a person less favourably due to their sex, pregnancy or marital status in a number of areas of public life including employment, the provision of goods and services and accommodation. The SDA also makes it unlawful to dismiss a person from employment on the ground of their family responsibilities and makes sexual harassment unlawful.

Sex discrimination can occur either directly or indirectly. Direct discrimination is where a person is treated less favourably than another person in the same or similar circumstances because of their sex or marital status or because they are pregnant. Indirect discrimination occurs where a requirement or condition is imposed that is the same for everyone but has an unfair effect on some people because of their sex, marital status, pregnancy or potential pregnancy. For example, direct discrimination may be where a woman is dismissed from her employment because she is pregnant. An example of indirect discrimination is where the requirement to work full time may unfairly impact on a woman who is returning from maternity leave, or has caring responsibilities.

One of the most common forms of sex discrimination is sexual harassment. Section 28A of the SDA defines sexual harassment:

"(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

b)engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

(2) In this section:

conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing."

Any unwanted or unwelcome conduct of a sexual nature can be regarded as sexual harassment. Behaviour that the Federal Court and Federal Magistrates Court have found to constitute sexual harassment includes:

  • unwelcome questions and requests of a sexual nature
  • unwelcome comments about a person's appearance
  • asking question of a personal nature
  • making comments of a sexual nature
  • behaviour which would also be an offence under criminal law - for example, a co-worker exposing his penis and rubbing his penis against a women's back
  • unwelcome physical touching - for example rubbing up against a person, touching a person's breast, leg or bottom
  • unwelcome declarations of love[5]

Much of the case law has found that the intention of the alleged harasser is not considered relevant in establishing whether sexual harassment took place.[6] Precedent also indicates that a one-off incident can be considered unlawful sexual harassment under the SDA.[7]

Section 28B of the SDA makes it unlawful to sexually harass a person in employment:

"(1) It is unlawful for a person to sexually harass:

a) an employee of the person; or
b) a person who is seeking to become an employee of the person.

(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

(3) It is unlawful for a person to sexually harass:

a) a commission agent or contract worker of the person; or
b) a person who is seeking to become a commission agent or contract worker of the person.

(4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.

(5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.

(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.

(7) In this section:

place includes a ship, aircraft or vehicle.

workplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.

workplace participant means any of the following:

a) an employer or employee;
b) a commission agent or contract worker;
c) a partner in a partnership."

Section 106 of the SDA provides that an employer is vicariously liable for acts of sexual harassment committed by employees or agents in connection with their duties unless "all reasonable steps" were taken by the employer to prevent the sexual harassment occurring. Complaints to AHRC regarding sexual harassment in employment are usually lodged against both the individual respondent(s) and the employer.

4. Statistical overview

While legislation making sexual harassment unlawful has been in place in Australia for twenty years and there is a growing volume of related jurisprudence, research indicates that the prevalence of sexual harassment in the Australian workplace is still high. A national telephone survey conducted for AHRC by the Gallup Organisation found that 41% of Australian women aged between 18 and 64 years and 14% of men have experienced sexual harassment. Two thirds of these incidents of sexual harassment occurred in the workplace.[8]

AHRC's report "A Bad Business, Review of Sexual Harassment in Employment Complaints 2002" provides a statistical overview of sexual harassment complaints finalised by AHRC in 2002. The report notes that:

  • the majority of complaints lodged under the SDA related to sexual harassment in employment [9]
  • the vast majority of matters involved a man sexually harassing a woman (86%)
  • sexual harassment complaints where the alleged harasser is a woman were rare (3%) as were allegations of same sex sexual harassment (2%).[10]
  • the most common type of sexual harassment alleged was verbal harassment (71%) followed by allegations of physical harassment, such as touching, hugging and deliberate and inappropriate physical contact. Cases involving sexual physical behaviour represented 23% of complaints[11].
  • 60% of individual respondents worked in a more senior position relative to the complainant and 34% of respondents were co-workers of the complainant.[12]
  • of those complaints alleging sexual harassment in employment, 77% of complainants were no longer actively working with the respondent employer at the time the complaint was lodged because they had resigned, taken leave or their employment had been terminated[13]
  • of the 162 complaints of sexual harassment that were finalised by AHRC, 57% were resolved.[14]

In summary, these statistics indicate that sexual harassment complaints are generally made by women against men, that many complaints relate to alleged harassment in employment by a person in a more senior position than the complainant and that most employment relationships have ended by the time the complaint is lodged at AHRC.

It is also important to note that these statistics and statistics available in AHRC's Annual Report, indicate that many sexual harassment complaints are successfully resolved by conciliation.[15]

5. Dispute resolution and sexual harassment

There are both advantages and disadvantages in utilising alternative dispute resolution in the context of anti-discrimination law and particularly in relation to issues of sexual harassment. The next section of this paper will consider some of the key characteristics of sexual harassment disputes and issues raised in relation to the resolution of such disputes through court and alternative dispute resolution processes. We will then examine some of the approaches and practical strategies used by AHRC conciliators in relation to sexual harassment complaints.

Characteristics of sexual harassment complaints

The issue of power is of significance when considering disputes of sexual harassment in employment.

Sexual harassment allegations are often characterised by theorists as the exploitation of women by men, which is generally viewed as an extension of traditional sexual power relations. MacKinnon notes that sexual harassment complaints tend to involve power inequality and a "gender power imbalance"[16] which may involve a "violation of sexual boundaries".[17] Thornton also points out that it is this very power differential between the sexes that may have led to the allegations of sexual harassment arising.

Statistics on sexual harassment complaints before AHRC highlight that complaints are often made by women in relation to alleged acts by men in more senior employment positions. Power differentials relating to work role may also be exacerbated by age differences between complainants and respondents for example, where complaints are made by young women at very early stages of their working life about the behaviour of their supervisors or employers. While statistics indicate that employment relationships between parties have often broken down by the time the complaint is lodged with AHRC, power relationships related to employment may still continue into the dispute resolution context. Further, as noted by Thornton, employers can generally be seen as inherently more powerful than employees in relation to such disputes as they are "...possessed of power emanating from access to information, documents and witnesses". [18]

Sexual harassment disputes before AHRC are also often characterised by significant factual dispute and high levels of emotion, particularly from the complainant and the alleged individual harasser. While emotions such as hurt, anger, shame and offence may be common in many complaints, these emotions are often heightened in sexual harassment matters due to the personal and sexual nature of the allegations.

These issues of power and emotion that characterise sexual harassment complaints are central to understanding the potential advantages and disadvantages of approaches to resolving such disputes.

Sexual harassment matters before the courts

Sexual harassment complaints brought before AHRC may be pursued under civil law where the matter has been terminated by AHRC. As noted previously, sexual harassment complaints may sometimes include allegations which could constitute a criminal act and therefore such allegations may also be pursued in a criminal jurisdiction.

Traditional feminist critiques of the formal legal system portray the court system as an extension of patriarchy, where traditional notions of gender bias and "anti-woman" sentiment are reinforced rather than redressed.[19] Using the court system to seek redress in sexual harassment matters has therefore been said to raise problems for women. For example, litigation in court can often involve high levels of personal scrutiny and the process of cross examination can be distressing for parties. Research in relation to sexual assault matters has indicated that testifying can be almost as traumatic for women as the actual assault[20]. Additionally, the required standards of proof in civil and criminal jurisdictions[21] may also present significant barriers for complainants in light of the fact that sexual harassment is often alleged to have occurred 'behind closed doors' and therefore there is no, or minimal corroborating evidence.

While the public scrutiny involved in an adversarial court process may be considered problematic for women alleging sexual harassment or sexual assault[22], this view may be seen as further disempowering women and may emphasise the shame that a women may experience as a result of being a victim[23]. Some women may, in fact, seek the publicity of a judicial hearing as the most appropriate means to address the issues they are complaining about. In this view the public and authoritative determinations of courts are necessary to send deterrent messages and influence social change for the benefit of women generally. [24]

Conciliation of sexual harassment matters

The issue of power is the basis for a number of concerns about the use of ADR in relation to sexual harassment disputes. Specifically, it is claimed that while such disputes generally involve an unequal distribution of power between the parties, the process of conciliation presumes that parties are able to negotiate equally for themselves[25], which may not always be the case. There is concern that pre-existing power imbalances related to gender may lead to potential abuses within the conciliation process and the existence of these power differentials may result in inequalities in outcomes if left unaddressed. In her article which deals with mediating family law disputes, Field speaks of a further potential for abuse of power whereby a party to the mediation may withhold information or unfairly use the process as a "fishing expedition".[26] These concerns translate to the conciliation of sexual harassment disputes where there may be fear by complainants that the conciliator will not be able to prevent such potential abuses of process.

Another prevailing criticism of conciliating sexual harassment complaints relates to the fact that the resolution takes place 'behind closed doors'. It is argued that privatisation of the dispute through a confidential processes may reinforce gender related power imbalances rather than address them. There is also concern that as the outcomes of conciliation remain confidential and often are only relevant to the parties, they "cannot be used as a model for others, or as a means of developing a collective lobby to change policy if policy changes have not resulted as a condition of settlement."[27]

From an alternative perspective, processes such as conciliation can be seen as a tool of empowerment in that in contrast with court processes where a win or lose outcome is imposed by a judge, they provide the potential for parties to be empowered though involvement in process and outcomes.[28] Not only are parties able to exercise a degree of control over the manner in which they achieve resolution, but complainants may also wish to seek outcomes such as apologies, policy changes, training for staff and references, which are not available through the court system.

Parties to a dispute may also choose to access alternative dispute resolution as a more appropriate method in light of their individual needs. For example, alternative dispute resolution is generally seen as a cheaper and quicker form of resolution in contrast with court proceedings. Additionally, the process may present fewer hurdles for complainants as the evidentiary burden is less than if a person was to proceed with a formal hearing into the allegations. For example, in complaint processes such as those utilised by AHRC, while a complaint must reach a substance threshold before conciliation is attempted, complainants are not required to 'prove' that the alleged events occurred. [29] Complainants and respondents may also prefer a confidential process to avoid any possible adverse impact on personal or business reputations. It is important to note that the privacy of the conciliation process can also impact on power differentials. For example, in some sexual harassment complaint contexts complainants may have a high level of situational power which derives from the desire of the respondent to ensure that the allegations do not become public.

Additionally, it can be said that the flexibility of the conciliation process means that it can be tailored to productively deal with some of the more difficult and intense emotions involved in sexual harassment matters.

6. Approaches to conciliating sexual harassment complaints

The previous section has raised a number of issues relevant to the resolution of sexual harassment disputes. Clearly, there are benefits and disadvantages in both court and alternative dispute resolution proceedings. In this section we will outline approaches and strategies used by AHRC conciliators to attempt to address potential disadvantages of alternative dispute resolution in this context. In particular we will consider approaches to addressing the issues of power and emotion which characterise such disputes.

The voluntary nature of conciliation

We note that the voluntary nature of conciliation may in itself be empowering. Much of the literature dealing with the appropriateness of conciliating sexual harassment disputes considers the effectiveness of models utilising compulsory conciliation.[30] As noted previously, the power to compel parties to attend a conciliation conference[31] is rarely used by AHRC. Not only is there the potential risk of removing the prospect of empowering the parties, but compulsory conciliation may not be an appropriate method to resolve complaints involving allegations of a sexual nature, particularly where there has been alleged sexual or physical assault. Forcing the parties to attend in these circumstances may in fact compound the problem and provide a forum for further harassment or abuse. Providing parties with the choice of participating in a conciliation process, allows parties to share responsibility for the process and decision making regarding any resolution.

Providing information to parties and the public

One of the primary mechanisms utilised by AHRC to attempt to empower parties and offset the private nature of the conciliation process, is to provide the parties with information about the legislation, relevant case law and their rights under the law. This is done at various stages of the complaint process and by various means.[32]

AHRC has developed a Conciliation Register which provides a de-identified summary of conciliated complaints and the outcomes of these complaints. AHRC also publishes case studies in its annual reports and other publications.

Information on conciliation outcomes and summaries of recent cases heard in the Federal Court and Federal Magistrate's Court are provided to parties when they are preparing for a conciliation process. Access to this information is particularly important where parties are not represented and may have difficulty obtaining such information. With a view to enabling substantive equality between the parties, AHRC conciliators aim to ensure that both parties to a complaint have access to similar levels of information and have similar understandings of what will happen in conciliation and the options that are open to them when making a decision about resolution.

The provision of information about conciliation through tools such as the Conciliation Register and other reports also provides a mechanism for information about issues raised under the law and the associated outcomes of complaints to reach the general public. This provides potential complainants, advocates and the wider community with information to assist understandings of unlawful behaviour and options for resolving related disputes.

Managing the form of conciliation

As noted previously, the AHRC conciliation process can be conducted in a variety of forms. This may include face-to-face conferencing, shuttle conferencing, teleconferencing and facilitating telephone shuttle negotiations. While face-to-face conferencing is the dominant model utilised by AHRC[33] , it is generally the case that any face-to-face process also involves components of shuttle conciliation. The format used for sexual harassment complaints is flexible and will depend on a range of variables including the nature and severity of the allegations,[34] the attitude and emotional states of the parties, the geographical location of the parties, potential power differences between parties and the parties' preferences. AHRC conciliators will not force parties to meet face-to-face and the appropriateness of the format will be reconsidered during the process. The format of the conciliation process can be an important consideration in that for some parties the ability to discuss events and feeling face-to-face is cathartic and crucial to resolution while for others such a process would be intimidating and distressing.

Managing attendance and participation in conciliation

Where a face-to-face conference is to form a component of the resolution process, AHRC generally requires prior notice from parties of proposed attendees as this assists party and conciliator preparation. In sexual harassment complaints in particular, complainants will often want to know in advance whether the individual respondent will be attending and who will be attending on behalf of the employer.

Parties to complaints lodged at AHRC may bring legal representatives or advocates to a conciliation conference where the conciliator is of the view that this will assist the effective resolution of the dispute.[35] The conciliator will, however, wish to discuss the process with the lawyer or advocate prior to the commencement to the formal conciliation process and the conciliator will control the nature of lawyer and advocate participation in the process. Where one party wishes to attend with a representative or advocate it may be recommended to the other parties that they seek their own independent legal advice or obtain the assistance of an advocacy agency. [36]

In sexual harassment matters, the involvement of lawyers or advocates may be of value, particular in addressing power differentials between the parties. Lawyers and advocates can assist parties understand their rights under the law and where a party is too distressed or uncomfortable expressing themselves in a conciliation process, a legal representative or advocate may assist them to have a voice. The presence of lawyers and advocates may also assist with dissipating the high level emotion that can potentially interfere with parties' capacity to negotiate effectively. It is noted that a recent research project on AHRC conciliation process revealed that there was a higher incidence of legal representation of parties in sexual harassment complaints compared to other areas of discrimination and that complainants had slightly higher levels of representation than respondents.[37] The reason for this is unclear but may relate to parties' perceived need for strong support in relation to such issues and/or increased willingness of lawyers to take on such matters in light of the more highly developed case law in this area.

Parties are also able to bring support people with them to a conciliation process. Many parties, particularly in sexual harassment matters, elect to bring partners, parents or close friends in this role. While support people generally do not contribute to discussion during joint sessions, they can assist a party to deal with the emotional content of the dispute and can act as a 'sounding board' during caucus sessions. As such, they can also assist to address power imbalances between the parties.

Conciliators may also arrange for interpreters or other assistance services where a party may not otherwise be in a position to participate equally in a conciliation process.

Managing the conciliation process

The way a conciliation process is conducted at AHRC aims to maximise the involvement of both parties and ensure that no party dominates the proceedings.

Conciliators at AHRC spend considerable time discussing the conciliation process and its aims with the parties and commence this dialogue as early as possible in the complaint process.

Where a face-to-face conference is held, it is generally the case that the conciliator will hold brief pre-conference discussions with each party prior to the commencement of the joint session. Pre-conference discussions can provide an opportunity for parties to raise any concerns they may have about the proposed process and prepare for the discussion and negotiation that will take place later in the process. While a conciliator will advise parties of possible benefits of a talking about the issues in a joint session, parties are not forced to speak or forced to speak directly to each other and in some cases it will be agreed between all participants that it will be better for a representative or advocate to speak on behalf a party in the conference.

When beginning a joint conference session, a AHRC conciliator will normally make an opening address which outlines the framework for the dispute, the role of the conciliator and establishes the terms under which the conciliation conference will proceed. This can provide parties with confidence that the process will be conducted in orderly manner in accordance with the statutory context and that the conciliator will aim to ensure fairness for all parties. Parties are also made aware that a conciliator may, if necessary, vary the format of the proceedings, call for a break to speak separately with the parties or call a halt to process if of the view that the process is becoming destructive in that it is entrenching the dispute or causing harm or distress for any of the parties.

In a joint session the complainant's view is the first to be heard as they are the ones bringing the claim.[38] Parties are encouraged to not only talk about the alleged events but how the events have affected them. This process provides parties with the opportunity to express themselves in their own words and at their own pace rather than have their version of events drawn out through examination in chief and cross examination as in court. The parties are encouraged to listen to each other without interruptions or the interventions of legal formalities. This may offer disempowered parties a real chance to tell their story.

Following any joint session, the parties are then able to either continue their discussions regarding settlement face-to-face with short breaks to confer privately, or the conciliator will conduct this phase in a shuttle format, moving back and forth between the parties to facilitate their negotiations. Parties are advised during both the investigation and pre-conciliation discussions that the process is flexible and where appropriate, parties are able to exercise a degree of control over the manner in which the conciliation conference is run. For example, where parties request a break in the proceedings the conciliator will generally accommodate any such request. Breaks can often be very effective in reducing emotional intensity and assisting parties refocus on resolution of the complaint.

The role of the conciliator

The level of conciliator intervention in process and outcomes will depend on the nature of the complaint, the attributes of the parties and the particular dynamics that emerge through the resolution process.

Where there is little evidence to support the complaint and there is an outright denial of the allegations, the conciliator may take a more facilitative role in the process, assisting the parties to understand the different perspectives of the facts, understand the law and explore their views on options for resolution. Where the evidence is more compelling or admissions of liability are made, the conciliator may take a more active advisory role in explaining the parameters of the legislation and relevant case law to the parties. The conciliator may draw attention to the types of outcomes achieved in similar matters and, in accordance with the conciliator's role to uphold the purposes of the legislation, may encourage parties to consider outcomes that further the objectives of the SDA. [39]

However, while the conciliator may contribute in varying degrees to the outcome of the dispute by providing information, conciliators do not determine suitable outcomes for the parties. Parties are advised that ultimately, they may choose to either resolve the complaint on agreed terms or, if there is no reasonable prospect of conciliation, to have the matter terminated, providing the complainant with the option of lodging an application in Federal Court of Federal Magistrates Court.

Conciliators are required to ensure that the resolution process is conducted, and is seen to be conducted, in accordance with the principles of natural justice and procedural fairness. To this end, conciliators will explain to parties why a matter has proceeded to conciliation and assist parties understand the parameters of the conciliator's role. It is also important for conciliators to provide parties with the necessary time and information to enable substantively equal participation in the process and to explain any interventions that are undertaken to address inequities between the parties. Additionally, conciliators must take care in all aspects of the complaint process to maintain neutral language and ensure that any non-verbal cues cannot be misconstrued as bias.

AHRC conciliators employ a range of alternative dispute resolution skills and strategies. Conciliators will often use a combination of the interest-based negotiation (IBN) model and positional bargaining model when facilitating resolution of sexual harassment complaints. As noted previously, sexual harassment complaints may involve allegations of physical abuse and are characterised by high levels of factual dispute, high levels of emotion and a breakdown of personal and employment relationships. Accordingly, strict application of an interest-based negotiation model which focuses on developing dialogue, exploring common interests and problem-solving is unlikely to be appropriate in this context. However, skills relevant to this model can be very helpful in many matters in the early stages of the process or when negotiations may falter as it assists parties explore a range of possible options to meet their needs and interests and consider alternative perspectives. While common interests may be limited in sexual harassment complaints, both parties may, for example, recognise a shared an interest in wanting the dispute finalised as quickly as possible or keeping the allegations confidential and identification of such areas of agreement can assist collaboration on settlement terms.

Conciliators are also required to utilise skills related to the facilitation of the more traditional positional bargaining model. This approach is often the preferred mode of negotiation for legal representatives and may be appropriate where a complainant is of the view that there is only one form of redress to resolve the complaint.

Conciliation outcomes

As noted previously, an empowering component of conciliation, in contrast with court processes, is the level of control and choice parties have in relation to the outcome of the dispute. The approach adopted by AHRC conciliators aims to ensure that parties consider a range of possible resolution outcomes and make informed decision about settlement terms.

AHRC conciliators apply communication skills to encourage parties' to articulate and prioritise their needs and interests and explore possible resolution outcomes to addresses these needs and interests.

While in sexual harassment matters the areas of common ground and common interest may be minimal, conciliators can assist parties to see how possible resolution terms may address their divergent needs. For example, the experience of AHRC conciliators, as supported by recent statistics, is that most sexual harassment complainants seek financial compensation and a number also seek terms of settlement related to the introduction or better enforcement of preventative strategies or policies.[40] A monetary outcome will often serve multiple purposes for a complainant as just compensation for lost or reduced wages, as a means of remedying hurt and humiliation and/or as a form of punishment. Settlement proposals related to the introduction or enforcement of strategies and policies to address sexual harassment in the workplace may be seen by complainants as a means to achieve positive changes that extend beyond their individual situations. Individual respondents may also be open to consider financial compensation as a means of achieving a quick and confidential resolution of the matter. Additionally, employer respondents may be open to resolution options which can be quantified in terms of lost wages and may seek outcomes which meet their needs for a cost effective resolution, prevention of future claims and maintenance of a positive company image.

Conciliators aim to assist parties make informed choices about outcomes by providing both parties with relevant information about how previous complaints have been resolved and how factually similar matters have been determined by the court. This enables parties to consider a broad range of options, to understand what may be seen as a fair settlement in the circumstances and to appreciate possible consequences if the matter is not resolved through conciliation. Conciliators will actively assist both parties to reality test and weigh resolution proposals and also allow parties to seek additional advice, or have a 'cooling off' period to consider resolution terms where this is seen as necessary to avoid hasty or pressured decision making.

7. Conclusion

It is our contention that despite various concerns about the potential disadvantages for women in conciliating sexual harassment disputes, the existence of this alternative dispute resolution process provides women with a choice. We support the proposition by Field, that "women must be given the opportunity to assess the mediation process, its advantages and disadvantages, and to arrive at their own free decision on whether to participate".[41]

Additionally, it must be acknowledged that the conciliation process may have many advantages in dealing with sexual harassment issues with reference to its accessibly, flexibility, privacy and focus on party control.

This paper does not negate the potential disadvantages of conciliation in this context, however it is our position that the manner in which the process is undertaken can seek to ensure a fair process for both parties to the dispute.

Conciliators working in this area need to have an awareness of the broader systemic issues underlying the allegations raised in the complaint, an understanding of the advantages and disadvantages of private resolution in this context and an appreciation of how power may manifest itself in informal resolution processes. Conciliators must also have an array of appropriate skills to ensure that power differentials between parties can be addressed in a manner which is reconciled with principles of natural justice and procedural fairness. Further, conciliators must have regard to individual circumstances and the wishes of the parties and care must be taken to tailor the conciliation process accordingly. Consideration needs to be given to "match.the characteristics of the dispute to the nature, objectives and aims of the dispute resolution process itself." [42]

CASE STUDY

Janine worked for a large company as a personal assistant for one of the company's senior executives, Darren. Janine does not recall ever receiving training about the company's sexual harassment policies and procedures although she was aware that the company did have sexual harassment policies in place.

From the time her employment commenced, Janine felt that the attention that her employer paid her was inappropriate however she chose to ignore it as she wanted to succeed in her new position. Darren asked Janine about her personal life and sexual activity, made sexually inappropriate jokes and pinched her backside on several occasions.

Several months after she commenced working Janine opened an email from Darren and discovered pornographic photographs attached to the file. When Janine confronted Darren about the pornographic attachments he told Janine that she was being prudish and that the photographs were artwork. Darren continued to make sexually offensive jokes and laughed at Janine for her reaction to the pornographic photographs. Janine was very uncomfortable being left alone in the workplace with Darren and felt that she was unable to continue working for the company. She resigned citing her reasons as "difficulties with Darren" however did not expand on this when asked by human resources. She has not since been able to find further employment.

Janine developed depression and reactive anxiety subsequent to the alleged treatment from Darren and required counselling. Janine lodged a complaint with AHRC alleging sexual harassment against Darren and against her former employer for vicarious liability. Darren has denied the allegations against him. The company has denied vicarious liability as it claimed that it had preventative policies in place and that these were provided to employees during their induction. It also claimed that as Janine had chosen not to discuss her problems with Darren with human resources it did not know of any alleged sexual harassment, it could not be held liable for any unlawful behaviour, if it had taken place.

1. Jodie Davis and Ariella Markman are Investigation/Conciliation Officers with the Australian Australian Human Rights Commission ("AHRC"). The views represented in this paper are the authors' own and do not necessarily represent the views of AHRC. Thanks to Jodie Ball and Tracey Raymond for their very helpful comments on the drafts of this paper.
2. Section 46PH Australian Human Rights Commission Act 1986 gives the President the power to terminate complaints, for example, if the complaint is lacking in substance or there is no reasonable prospect of the matter being settled through conciliation.
3. National Alternative Dispute Resolution Advisory Council, "ADR Definitions Paper", 1997.
4. The Act, sections 10A and 28 and the SDA, section 3.
5. Ball , J Commonwealth anti-discrimination law and the workplace: Recent developments". Paper delivered at the 2002 Workplace Review , October 2002 pg. 5
6. See Sarah Johanson -v- Richard Blackledge & Lucimer Blackledge t/as Michael Blackledge Meats [2001] FMC 6
7. Ibid and Hall & Ors v A. & A. Sheiban Pty Ltd & Ors (1989) 85 ALR503 at 514.
8. AHRC, "Sexual Harassment, 20 years on: the challenge continues", telephone survey, 2004
9. The report considered sexual harassment complaints that were finalised in the 2002 year under the SDA. In this period 370 complaints were finalised and of those, 162 related to sexual harassment and 155 of these related to sexual harassment in employment.
10. AHRC, "A Bad Business, Review of Sexual Harassment in Employment Complaints 2002", Part C
11. There were 299 incidences of the various types of harassment recorded for the 152 complaints considered in the study as some complaints involve allegations of a number of different types of harassment
12. AHRC, "A Bad Business, Review of Sexual Harassment in Employment Complaints 2002", op cit, p23
13. ibid p10
14. Ibid p30
15. The current rate of conciliation under the SDA is 43%, whereas the overall conciliation rate across the various pieces of legislation is 32%. The conciliation success rate for SDA complaints, that is the number of complaints resolved where conciliation is attempted, is 64%. AHRC Annual Report 2002-2003 pp75-84.
16. Baylis, Claire, "The Appropriateness of Conciliation/ Mediation for Sexual Harassment Complaints in New Zealand," (1997) 27 VUWLJ p596
17. MacKinnon, Catherine, "Only Words", Harper Collins Publishers, London, 1995, p40
18. Thornton, Margaret, "The Liberal Promise, Anti-Discrimination Legislation in Australia", Oxford University Press, Australia 1990, pp 153 and 153
19. Scutt, Jocelynne A, "The Incredible Woman - Power and Sexuality Politics Volume 1", Artemis Publishing, Melbourne 1997 Chapter 7, p148.s
20. New South Wales Sexual Assault Committee, 1993 "Sexual Assault Phone-In Report"; Law Reform Commission of Victoria 1991, "Rape: Reform of the Law and Procedures No 42; Appendices to Interim report No 42.
21. The standard of proof in civil matters is 'on the balance of probabilities', while the standard of proof in criminal matters is 'beyond reasonable doubt'.
22. Scutt, Jocelynne A, "Women and the Law - Commentary and Materials" (1990) at p554
23. Hughes, Catherine, "Justice among Equals? Conciliation and harassment complaints," ALSA Academic Journal 1994, p 94
24. Baylis, op cit, p 616
25. Hughes, Catherine, op cit, p1
26. Field, R, "Family Law Mediation: Process Imbalances Women Should be Aware of Before They Take Part," 14 QUTLJ, p 37.
27. Thornton, M, op cit, at p151
28. Baylis, Claire, op cit p 591
29. A complaint would ordinarily be seen to be 'lacking in substance' where it "..presents no more than a remote possibility of merit or .does no more than hint a just claim" Assal v Department of Health Housing and Community Services (1992) EOC 92-409
30. Baylis,op cit, p589
31. Section 46PJ of the Act
32. AHRC has a range of strategies to assist parties to participate in the conciliation process and make informed decisions. This includes provision of detailed written and verbal information on the conciliation process and the associated court process and the availability of a DVD/ video to assist parties prepare for conciliation.
33. A AHRC survey of complaints where conciliation was attempted in 2001 indicated that the majority of survey participants (63%) participated in a face to face conciliation meeting with some 36% participating in telephone shuttle process. AHRC, "Review of changes to the administration of anti-discrimination Law: Reflections on the initial period of operation of the Human Rights Legislation Amendment Act (No.1) 1999 (Cth) August, 2002
34. It is noted that some sexual harassment complaints may involve claims of more serious physical acts and in such cases where resolution of the complaint is attempted, parties are unlikely to be brought together for any aspect of the conciliation process.
35. The 2001 AHRC survey of complaints where conciliation was attempted indicated that,41% of participants in the conciliation process were legally represented. ibid
36. For example, complainants may participate in conciliation with the assistance of a representative from a Working Women's Centre. Respondents may seek assistance from an employer or industry body.
37. The AHRC survey also revealed that 52% of parties in sex discrimination matters had legal representation in comparison with 39% of parties in race discrimination matters and 35% of parties in disability discrimination matters. 54% of complainants in sexual harassment matters had legal representation in contrast with 49% of respondents. ibid.
38. It has been argued that the order of speaking in a conciliation process can impact on power differentials in that the first story told sets the context for discussion. See Janet Rifkin, Jonathan Millen & Sara Cobb "Toward a Discourse for Mediation: A Critique for Neutrality" Mediation Quarterly Vol 19 No 2, Winter 1991, p161
39. Section 28 of the Act provides that when endeavouring to resolve a complaint, the Commission must have regard to the need to reflect recognition of human rights in any settlement.
40. AHRC's report "A Bad Business, Review of Sexual Harassment in Employment Complaints 2002" op cit, found that of matters where the remedies sought were specified, 93% of complainants sought financial compensation, 59% sought an apology, 38 % sought the introduction or enforcement of prevention policies, 11% sought the provision of a reference or work statement and 6% sought the dismissal or demotion of the alleged harasser.
41. Field, R, op cit, p 37
42. Baylis, op cit, p88


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