By Mia Casey
Since the #MeToo movement gained momentum last year, the issue of sexual assault and harassment has been brought into the mainstream consciousness on a level not seen in previous years.
Workplaces in particular have been shown to be a difficult landscape to navigate for those experiencing sexual harassment, and a call for a change in workplace culture has seen many organisations reviewing their sexual harassment policies, and updating their training. Unfortunately, despite this new push for justice, there are still major hurdles that often prevent victims of harassment from reporting, including legal, time, and financial barriers.
What is sexual harassment?
‘Sexual harassment is any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated’ (x). It doesn’t need to be physical in nature.
‘… a person sexually harasses another person (the person harassed) if:
- the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
- 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 the possibility that the person harassed would be offended, humiliated or intimidated.”
This includes making a sexually inappropriate statement to, or in the presence of, the person as well (s 28A(2)).
The ‘circumstances’ that must be regarded are detailed in s 28A(1A), and include anything from age and orientation, to the relationship the harassed person and the harasser, or ‘any other relevant circumstances’.
The prevalence of sexual harassment in Australian workplaces
Data supports the numerous accounts heard across social and traditional media, with a 2012 Australian Human Rights Commission (AHRC) survey noting that 1 in 4 women and 1 in 6 men had experienced sexual harassment at work within the 5 years prior (x). In the same survey, men were shown to be the largest perpetrators of harassment towards women and other men, with nearly 4 out of 5 harassers being male (x).
Similar surveys have been conducted independently by employers that mirror these results. For example, the Australian Federal Police (AFP) issued a statement in 2016, after it was found by an independent report that 46% of female AFP employees and 20% of male AFP employees had been sexually harassed at work in the last 5 years (x). Former Sex Discrimination Commissioner, Elizabeth Broderick, called for “urgent action” to be taken against the ‘boy’s club’ culture within the AFP (x).
For many of those yet to enter the full-time workforce, the issue is still rampant. Another report in 2016 conducted by the AHRC on behalf of Universities Australia, found that 51% of Australian university students had been sexually assaulted in 2015-2016 alone (x), showing once again just how pervasive this form of harassment is in our culture in general. (Check out this great article by Fatima Olumee from UTSSoc about consent in the wake of the #MeToo movement).
Barriers to reporting
Unfortunately (although perhaps not surprisingly), the number of official complaints being made do not match the number of people being victimised, with only 1 in 5 victims having made a complaint. Of those that do come forward, most report instances of harassment to their employer, rather than the legal system itself (x).
One of the big contributors to this lack of reporting, particularly for instances of harassment experienced at work, is a fear that the complainant will have their job security or career progression called in to question, and be labelled a ‘trouble maker’, with many who do make a claim quitting their jobs before conciliation. This is due to several factors, including time and financial constraints, and the difficulty of reporting.
Time and money
As of last year, the Government made the decision to cut the time frame for complaints to be made to the AHRC down from 12 to 6 months.
While this does not deny people the ability to submit a complaint after the 6 months is up, it does muddy the waters, and gives the AHRC President the power to dismiss any claims made after this time. If denied, those who are trying to make a claim are left to apply to the Federal Court (x) – which is both expensive and time consuming. Claims made later are also more likely to be subject to employer criticism, adding another layer of difficulty for victims wishing to come forward.
Further, there are still financial constraints for people who do come forward within the 6 month period. While the AHRC process discourages lawyers being involved in the conciliation process, the trend towards ‘lawyering up’ (x) has made the whole ordeal a more expensive one, further discouraging victims from coming forward.
Also, as sexual harassment is not clearly covered under the Fair Work Act 2009 (Cth), the quick-stop measures included in the Act are not readily available. Instead, harassment is covered under the Sex Discrimination Act 1984 (Cth), where claims are processed by the AHRC and can take an average of 3.8-4.3 months to be resolved (x).
Difficult reporting structures
As employer organisations are the first point of call for victims, it is important that they have clear processes and structures in place for employees to report instances of harassment when they arise.
Oftentimes, however, smaller instances of harassment, such as an inappropriate joke at another’s expense or a lewd comment in a hallway, are deemed insignificant in many workplaces so are not reported. Indeed, recourse for such gestures can be confusing or non-existent in our laws as well. As noted by Kate Jenkins, Sex Discrimination Commissioner:
“There’s no mechanism to stop the small stuff, and yet the tolerance of the small stuff creates the environment that lets the big stuff happen” (x).
Reporting for bystanders or witnesses of harassment is also important, and should be made as simple as possible. Many employees note that they do not report harassment, received or witnessed, simply because they don’t know who to report it to. Organisations themselves need to ensure that all employees are made aware of sexual harassment and discrimination policies when they start working with them, and then periodically thereafter.
There is a deep need for a cultural shift in the workplace, which the #MeToo movement has helped make more apparent. This not only requires employers to be more conscious of how they treat cases of sexual harassment, but also falls to employees to speak up when they witness inappropriate conduct.
It’s not ‘just a joke’
Part of this shift involves having an understanding of your rights when you enter the workplace. For example, a common defence to instances of verbal or written harassment is the perpetrator claiming it was ‘just a joke’ or that the harassed person ‘can’t take a joke’.
As the law demands the victim’s circumstances be taken into consideration when determining whether an act constitutes sexual harassment, ‘… the test of whether behaviour is sexual harassment or not is not what the harasser thinks is sexual harassment’ (x) but rather what could reasonably be deemed as harassment when taking into account the circumstances. This means that the ‘it was a joke’ defence will not stand.
It is also a great idea to seek out your employer’s sexual harassment policy and understand the process for reporting – not just to help yourself if anything were to happen, but also to give you the knowledge to help if you see it happening to others (aside from telling the perpetrator to stop).
If you’re interested in reading up more on your rights in the workplace in regards to sexual harassment, check out the AHRC website which has a number of really helpful resources that are easy to digest and can help inform workplace reform.
Finally, UTS is part of the national Respect.Now.Always. campaign that ‘aims to eliminate sexual assault and harassment on campuses’. Part of this involves students and staff undertaking the Consent Matters training, which broaches the topic of sexual consent and helps give you the skills for real-life situations where you may be confronted with harassment. Be sure to keep an eye out for an email that will notify you when the training is ready to be completed!
(Video by Blue Seat Studios, via YouTube)
If you or someone you know needs support, UTS offers a number of services students and staff can reach out to for help. Visit this page for more information on the resources available to you.
Featured image courtesy of Unsplash