Sexual Harassment Investigation Myth Busting 

With the issue of sexual harassment being so much in the media spotlight, I felt that it was time to revisit and update some of the most common myths 

Myth: We don’t need a sexual harassment policy in our organisation, after all it’s common sense.

Fact: Having policies that clearly outline the behavioural expectations of your organisation is part of taking all reasonable steps to ensure that there is nothing in the workplace that could cause an employee to suffer and illness or injury.

Sexual harassment has been linked to the development of psychological illness such as stress, anxiety, depression and PTSD.

Myth: We don’t need sexual harassment training in our organisation, after all this is also common sense.

Fact: Having training that clearly outlines the behavioural expectations of your organisation is another part of taking all reasonable steps to eliminate or respond to sexual harassment in the workplace.

Training in conjunction with policies allows you to clearly outline the consequences for behaving in a sexually harassing manner towards other staff members.

Myth: I can’t report sexual harassment as no one will believe me

FactIn many cases sexual harassers are serial offenders, known as the office sleaze, the person to keep away from. Many people especially young women are told early on “look out for him he’s a real sleaze” or similar.

Management and HR are in a much better position to take action if they have information to act upon.

The best way to help stop these people is take a stand, refuse to be the victim and report it HR or management. Not allowing yourself to be a victim is courageous and empowering.

Myth: As a HR professional or manager I can’t do anything about sexual harassment unless someone makes a complaint.

Fact: If you see it, hear about it, know about it or suspect that sexual harassment is occurring you should/must take some action.

You have a duty of care to ensure that all reasonable steps are taken to prevent sexual harassment in the workplace. Don’t make excuses, they may come back to bite you.

Myth: It’s not sexual harassment if “I didn’t mean anything by it” or “I was only joking

Fact: Most, if not all harasses are well aware of what they are doing. Do not accept this excuse, especially if the harasser has been told that the behaviour or comments are not acceptable or has been told to stop.

Myth: If I ask a co-worker out on a date she/he can claim that it is sexual harassment

Fact: It is not sexual harassment to ask a co-worker out on a date;  HOWEVER, if you are asking a co-worker out on a date after being previously refused, ignored or not receiving a definitive answer YES it can be sexual harassment.

Myth: If I have already dated a co-worker she/he cannot claim that it is sexual harassment if I keep asking them out.

Fact:  Once again it may not be sexual harassment if they consent, but it is sexual harassment if they decline further dates, no matter how many you have been on.

Just because they went out with you once, twice or many times does not mean they do not have the right for future refusal.

Persistence is NOT a virtue.

Myth: It is not sexual harassment if they don’t really say ‘no’ when I keep asking them out or making those sorts of suggestions.

Fact: Often the recipient of the request may feel awkward in saying no and may change the subject or avoid answering the question or say something like “I don’t know if I’m free, I’ll get back to you.”

If there is a power imbalance, for example manager and direct report, or manager and other staff member again the recipient of the request/s could be fearful that a direct refusal may harm their career or position in the company.

The golden rule is if they don’t say a clear absolute unambiguous YES then it’s a NO.

Myth: It is not sexual harassment if I am only texting.

Fact: Sexually harassing someone via text, Facebook or any other social media or carriage is still sexual harassment.

Myth: It is not necessarily sexual harassment for a boss or manager to ask a co-worker out on a date.

Fact: It’s not, but using your power or seniority to coerce a co-worker into going out with you – bit of no brainer there, YES of course that is

Myth: Making a comment about how someone looks is not sexual harassment

Fact:  Commenting “You look nice today” in a neutral friendly manner, is not sexual harassment.

Commenting “You look nice today” in a leering, looking up and down suggestive or sleazy manner – YES that is sexual harassment.

Myth: I am a tactile person, so touching is not sexual harassment

Fact: Seriously, it is – here is a simple rule; respect other people’s personal space, don’t do it, don’t touch unless clearly invited to do so.
Keep your hands to yourself.

Myth: Sending or giving a co-worker gifts or tokens of your affection is not sexual harassment

Fact: Many complaints of this nature occur after an initial indication that the attention is unwelcome.

If this is the case YES this can be construed as sexual harassment.  Remember unless it is a definite YES then assume it’s a NO. In this case persistence is not a virtue

Myth: In the past we have had mutually acceptable sexual conversations and/or a consensual sexual relationship so wanting to continue is not sexual harassment

Fact: These are examples of behaviour that is not generally regarded sexual harassment due to the consensual nature.

HOWEVER, should one party decide not to continue the relationship or conversational banter, when the other party is made aware of this should they desist immediately as continuing past this point may constitute sexual harassment.

Myth: It wasn’t sexual harassment because we were all drinking and I didn’t really know what I was doing.

Fact:  TWO WORDS – Personal responsibility and YES, it is

Myth: I can’t report the sexual harassment as I was drinking, and I didn’t really know what to do.

Fact: Drinking or being intoxicated/drunk does not make the harassment any less unwarranted or unwanted and does not provide an excuse for the harasser

Myth: She is always flirty and dresses in a provocative manner, it’s not my fault, she encouraged me.

Fact:  A person’s manner is not relevant. What one person considers to be flirty may be intended to be friendly, outgoing and bubbly. A simple rule; do not read too much into friendly behaviour.

The way a person dresses is not an invitation for attention nor is it an intention to engage in sexual conduct.

Myth: You should just ignore some people, “that’s just him, he’s harmless, just ignore him, everybody knows he’s a bit sleazy.”

Fact:  While these are commons comments, it is not acceptable to have to just ignore a person whose behaviour is inappropriate by saying ‘that’s just him”

Myth: It’s not my business, I should just ignore it

Fact: You should NEVER just ignore it. Imagine if it were you.  The victim may be too afraid to report the matter.

Everyone in a workplace has a duty of care to ensure that they do all that is reasonably practicable to ensure the safety of all others in the workplace.

Myth: I don’t think that we have a policy about sexual harassment. No one has told me about what I should or shouldn’t do so it’s not my fault.

Fact:  If the business is sensible they will have one and you will have been told about it – ASSUME THAT YOU HAVE BEEN TOLD

Myth: I didn’t know what I was doing was wrong, so it’s not my fault.

Fact: It the business is sensible they will have conduct sexual harassment awareness training – ASSUME THAT YOU KNOW NOW

Myth: I really don’t know what is classed as sexual harassment.

Fact: Here are some examples of sexual harassment that might be helpful to assist in understanding:

  • Staring, leering or unwelcome touching
  • Suggestive comments or jokes
  • Coercive behaviour that is intended to be sexual in nature
  • Sending sexually explicit emails or text messages
  • Repeated unwanted requests to go out on dates
  • Intrusive questions about a person’s private life
  • Requests for sex
  • Displaying posters, magazines or screen savers of a sexual nature
  • Inappropriate advances on social networking sites
  • Accessing sexually explicit internet sites
  • Behaviour that may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications

Myth: As a business or employer sexual harassment is a matter between the two parties, it’s not a workplace issue.

Fact: Ponder these court cases that clearly illustrate the effects of sexual harassment in the workplace on businesses and employers:

Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC a breach of duty of care in a sexual harassment matter in which the Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, sexual harassment and bullying by her colleagues. Link to case

Collins v Smith (Human Rights)[2015] VCAT awarded more than $330,000 as compensation to Ms Collins, an employee who had been repeatedly sexually harassed by her employer, Mr Smith, the owner and manager of the Geelong West Licensed Post Office. Link to case

Tan v Xenos (No 3) [2008] VCAT 584 – a sexual harassment case where Ms Tan was awarded general damages of $100,000. Link to case

Poniatowska v Hickinbotham [2009] FCA 680, a sexual harassment case where the complainant was awarded $90,000 general damages in a total award of $466,000. Link to case

Ewin v Vergara (No 3) [2013] FCA 1311 – a sexual harassment case where Ms Ewin was awarded $110,000 in general damages and $293,000 for loss of past earning capacity. Link to case

GLS v PLP [2013] VCAT 221 – a sexual harassment case where a general damages award of $100,000 was made Link to case

Richardson v Oracle [2014] FCAFC 82 – a sexual harassment case where Ms Richardson was awarded general damages of $100,000 in a total award of $130,000. Link to case

The best way to avoid confusion and to make sure you have complied with your responsibilities is to train your staff. The money you spend on training may save you in the long run, should things ever go wrong.

If you would like to know about tailored training session for your employees and managers including the popular 60 – 90 minute lunch and learn sessions please contact me – http://awpti.com.au/employee-training/

If you receive a complaint and are unsure about the process it pays to call in an expert. Once again AWPTI can assist you in this regard – http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations and provide you and your employees with up to date a relevant training in the areas of sexual harassment, misconduct, bullying & harassment and other issues facing employers and workplaces.

If you would like to know about tailored training session for your employees and managers including the popular 60 – 90 minute lunch and learn sessions please contact me.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator/trainer in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.