Sexual harassment – Busting the myths

Despite a number of matters in courts and tribunals sexual harassment in the workplace continues to be an issue.

As a workplace investigator and trainer I come across many opinion, beliefs and myths about what is and what is not sexual harassment and where is the line drawn?

Some of the most common myths around sexual harassment

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

Fact: In 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 comment 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.

 

Myth: It is not sexual harassment if they don’t really say ‘no’ when I keep asking them out or making those sort 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 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 it is (You would be amazed that the complaints of that nature I have investigated).

 

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, (and yes I have heard that excuse) here is a simple rule, respect other people’s personal space, don’t do it, don’t touch unless clearly invited to do so.

 

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

Fact: I have dealt with many complaints where this happens after an initial indication that the attention is unwelcome.

In this 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: 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:

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.

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

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

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

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

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.

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 receive a complaint and are unsure about the process it pays to call in an expert.

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
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.

 Addressing Workplace Bullying

Addressing Workplace bullying, harassment and sexual harassment are common problems faced by many employers and organisations. If not addressed the behaviour of a few can lead the detriment of others and to a large and potentially costly headache for the business.

In recent times there have been a number of very costly judgements being awarded against employers for breaching their duty of care to employees who were the victims of bullying, harassment and sexual harassment in the workplace.

Addressing workplace bullying, harassment and sexual harassment is not a simple fix, however there are things you can and should do.

Here is a four step method to;

  1. Take reasonable stops to respond to and reduce workplace bullying, harassment and sexual harassment in the workplace.
  2. Cover the business if complaints are made
  3. Promote an inclusive workplace culture
  4. Be seen as an employer of choice

Step 1

Have well written and up to date policies and procedures in place.

Be warned however, bullies and harassers ignore policies, but policies are the law in your company and a breach may be grounds for dismissal. If you don’t have the laws in place, bullies and harassers can behave with impunity.

If you don’t have up to date policies in place we can help – http://awpti.com.au/backup/hr-support/

Step 2

Have training in place designed to clearly outline your policies and the behavioural expectations the company has of its employees.

Again be warned, bullies and harassers ignore training, but if they breach a policy they cannot say “I wasn’t told.” If they are recorded and having undertaken the training, especially with face to face training, where they can’t use excuses like ‘the system was down’, or ‘I missed that bit’.

Good training must include the definitions of what is and what is not bullying, harassment and sexual harassment in the workplace and include the sanctions for breaching policy and being a bully or harasser.

If you don’t have effective workplace training in place we can help – http://awpti.com.au/backup/training/

Step 3

Have a robust and impartial investigation process in place. Make sure that if employees breach policy or act in a bullying, harassing and sexual harassing manner they will be dealt with.

Often engaging an external and professional investigator will send the message that you are not mucking around.

Step 4

Follow up on substantiated findings of bullying, harassment and sexual harassment with decisive action, it may be another case of sending a message that bullying, harassment and sexual harassment will not be tolerated and will be dealt with.

A note of caution;

You must ensure that all investigations are carried out in the professional manner affording the alleged perpetrator procedural fairness including;

  • The right to know the allegations made against them
  • The right to be hard and have their version of events taken into consideration
  • The right to a final determination based on the evidence
  • The right to an unbiased decision maker.
  • The right to a support person during interviews and meetings

Other considerations are;

  • The investigation methodology
  • The rules of evidence
  • Timing of the investigation (including how long it took)

Organisations should not fear taking decisive disciplinary action if they follow correct procedure.

When it comes to conducting a full, professional, timely and cost effective workplace investigation we can help

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

For more information:

www.awpti.com.auenquiries@awpti.com.au  or 02 9674 4279

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 into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

This is general information only. It does not replace advice from a qualified workplace investigator 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.

Vicarious Liability – employers be aware of duty of care

Employers have a duty of care to ensure that they take all reasonable steps to ensure that there is nothing in the workplace that could cause an employee to suffer an injury or to contract an illness this includes taking reasonable steps to eliminate and/or respond to workplace bullying, harassment and sexual harassment failure to do that can result in an an action in negligence and a Vicarious Liability claim.

Organisations must be aware that they may found to be vicariously liable for the bullying behaviours of one employee toward another employee.

Business owners, employers and managers must ensure that they do all that they can to ensure that the duty of care is not breached as it can have serious consequences for employees and expensive consequences for employers.

The case of Eaton v TriCare (Country) Pty Ltd [2016] QCA 139 illustrates a breach of duty of care in a workplace bullying matter.

The Queensland Court of Appeal found that an aged care facility had breached its non-delegable duty by failing to take steps to minimise the risk of a former employee developing a psychiatric illness due to managerial pressure.

A former employee of the nursing home claimed that she developed depression and anxiety as a result of her excessive workload and the conduct of her manager. She claimed that, from 2009 when the particular manager joined the facility, she was subject to offensive, intimidating and humiliating behaviour causing her to become withdrawn, preoccupied, worried and noticeably depressed within the workplace.

The former employee claimed damages for loss of earnings as a result of her inability to work due to her psychiatric illness.

Being overworked, of itself, would not have been sufficient to establish breach. However, the manager’s constant belittling, yelling, aggression and general disregard for the former employee, coupled with the excessive workload, was sufficient to amount to breach.

There was evidence to suggest that the manager (and therefore the facility) should have foreseen the former employee’s particular vulnerability and her risk of developing a psychiatric disorder. Awarded over $430,000.00 in damages as a result of Vicarious Liability

Lessons for employers:

1.   Ensure that you have policies and training in regard to employee behavioural expectations, we can help – http://awpti.com.au/backup/training/

2.   Have a trusted misconduct reporting process in place.

3.   Ensure that your managers are aware of their duty of care to employees and understand the difference between management and bullying.

4.   Investigate complaints of this nature thoroughly and in a timely manner. http://awpti.com.au/backup/investigations/

5.   If in doubt call an expert

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

Vicarious Liability - employers beware

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 misconduct, investigations, procedural fairness, reasonable management action, performance management, bullying & harassment and other issues facing employers and workplaces.