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

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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 unlikey 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.