Sexual Harassment Fact or Fiction

Workplace Sexual Harassment Fact or Fiction some of the most common fallacies & comments around workplace sexual harassment

Workplace Sexual Harassment Fact or Fiction – This article will discuss some of the common misconceptions, comments and excuses made by people in relation to workplace sexual harassment

As a workplace investigator I have interviewed 100s of people who are subjected to, witness or engage in workplace sexual harassment. I will discuss the reasons why people don’t report and the excuses made during interviews by preparators.

As an employer, manager or HR professional you may come across these reasons from people subjected to or having witness workplace sexual harassment and also excuses given by people who engage in bad behaviour.

Workplace sexual harassment comes in many forms but it can be summed up as treating a co-worker with a lack of 3 words, “Respect, Courtesy and dignity’

Whenever I conduct training or investigations I always suggest to organisations that they include in their workplace behavioural polices;

“All employees should treat each other and ……… with respect, courtesy and dignity”

Regardless of whether an organisation has one policies or multiple it should be included in all.

As employers if you are not sure what to do, my advice is training – details here

Workplace Sexual Harassment Fact or Fiction

Fiction: 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 complainant and report it HR or management. Not allowing yourself to be a complainant is courageous and empowering.

Fiction: 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.

Fiction: Only men are harasses, women are only victims

Fact: Both men and women can be harasses and victims.

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.

Fiction: 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.

Fiction: 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.

Fiction: 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 the person you asked out don’t say a clear absolute unambiguous  YES then it’s a NO.

Fiction: 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.

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

Fact: It’s not, the same rules apply 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

Fiction: 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.

Fiction: 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.

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

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

In this case YES this can be construed as sexual harassment especially if there is any expectation attached to the gift.  Remember unless it is a definite YES then assume it’s a NO. In this case persistence is not a virtue

Fiction: 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.

Fiction: 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. Being intoxicated is NO excuse

Fiction: 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 offensive, unwarranted or unwanted and does not provide an excuse for the harasser.

Fiction: 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.

Fiction: 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 appropriate by saying ‘that’s just him”

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

Fact: You should NEVER just ignore it. Imagine if it were you.  The complainant 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.

Fiction: 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 company does not have a policy, it should have one.  But in the absence of a policy sexual harassment in the workplace is unlawful.

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

Fact:  Common sense rules

Fiction: The changes to the law don’t affect me, I’m just an employee.

Fact: If you engage in sexual harassment in the workplace, You could be dismissed for serious misconduct.  You could be the subject of a Stop sexual harassment order.

Fiction: It’s not my job to stop sexual harassment at work.

Fact: It’s everyone’s responsibility, everyone has a duty of care in the workplace. You are all the guardians of your culture.

Sexual Harassment Fact or Fiction – Recent questions asked by employers

Question: I have heard about this new positive duty, but I don’t know what I need to?

Answer:

1.Have a policy in place that is up to date & current

2.Make sure every employee knows about the policy and where to find it

3.Review, update & provide training to support the policy that outlines;

• What sexual harassment is
• That it is unlawful
• The behavioural expectations of the organisation
• What to do if an employee is subjected to or witnesses sexual harassment

Question: What happens if I don’t comply with the new positive duty

Answer: Well you could be sued for a breach of your employers duty of care if your non compliance leads to a person suffering an illness or injury.

In addition, from 1 December 2023, the Australian Human Rights Commission (AHRC) can inquire into compliance with the new positive duty. If non-compliance is reasonably suspected, the AHRC can issue a compliance notice and apply to the Federal Court for orders to direct compliance with the notice.

More detail about compliance can be found here

Question: How often should I be doing training?

Answer: I recommend at least annually, but it is important to run sessions when you get new staff coming on board.

More information about the new positive duty can be found here

What can you do?

Responding to sexual harassment

All incidents of sexual harassment – no matter how large or small or who is involved should be reported.

Employers or managers should respond quickly and appropriately.

Just because someone does not object to inappropriate behaviour in the workplace at the time does not mean that they are consenting to the behaviour.

The law

Sexual harassment is against the law. Some types of sexual harassment may also be offences under criminal law and should be reported to the police, including indecent exposure, stalking, sexual assault and obscene or threatening communications, such as phone calls, letters, emails, text messages and postings on social networking sites.

The Continuum 

Sexual harassment can often be seen as being a continuum there the perpetrator increases the sexually harassing behaviour if the victim does not object or report the behaviour.

It’s like “testing the water”

The continuum starts with low level activity and works upward.  In many cases the perpetrator may ignore subtle or non-subtle signs from the victim that the behaviour is offensive or unwanted.

• Nonsexual comments or questions
• Nonsexual touching
• Sexual comments or questions
• More sexual touching
• Starring, intruding on personal space
• Continually pestering with comments, jokes, requests
• Requests for dates, sex, etc
• Veiled/implied threats
• Intimidation
• Overt threats
• Assault

Where do you draw the line with sexual harassment?

• This is an individual matter, everyone is different.
• There is no right or wrong time for you to draw the line but it is suggested that the earlier the better
• If you are a manager, supervisor, employer or HR professional, no negative conclusion should ever be drawn as to when and how someone draws the line.
• If a friend of colleague comes to you for advice or support, never place your own values on what they are telling you.
• Remember everyone is different.
• Listen and support

What can I do if I’m experiencing sexual harassment at work?

• Make a decision on where you draw the line
• Document the interactions/issues including times, dates, locations, actions and words used.
• Raise the issue directly with the harasser and tell them that their behaviour is unwelcome.
• Talk to a colleague for support.
• Speak to your manager/employer and/or make a complaint.
• Contact the Australian Human Rights Commission or state and Federal anti-discrimination agencies for information or to make a complaint.

What can I do if I see or know about someone else experiencing sexual harassment at work?

• Don’t ignore it, imagine if it were you.
• Talk to your colleague and support them, advise them to report the matter.
• Raise the issue directly with the harasser and tell them that you are aware of their behaviour.
• Speak to your manager/employer and/or make a complaint.
• Remember your duty of care.

 “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.”

The Bystander effect?

 In simple terms the Bystander effect is where a person is less likely to take action or intervene if others are around and witness the same incident or behaviour expecting that someone else will do something.

DO NOT be that bystander

If you see something, say something, do something

Imagine if it was you or someone that you care about

Your rights and obligations

• You have the right to a workplace that is free of sexual harassment
• You have the right to a workplace that is free of anything that could cause you an illness or injury
• Courts and research has shown that sexual harassment can lead to cases of illness such as anxiety, depression and PTSD and associated physical conditions
• You have the right to choose who you wish to engage in a personal relationship with.
• You have the right to choose when and where you wish to engage in personal relationship

• Any individual will be personally liable for their own unlawful acts under the Sex Discrimination Act, and in particular for acts of sexual harassment and victimisation.
• In these circumstances, the individual can be held responsible for their behaviour through an internal complaint process, by being the subject of a complaint to AHRC or a State or Territory anti-discrimination agency, or through legal proceedings before the Federal Court of Australia or Federal Magistrates Court.
• Yes, you can be personally sued

Consequences

Consequences for complainants

Sexual harassment has a number of effects on its complainants both physically and emotionally, including;

• Stress, depression, anxiety
• Fear of the respondent and coming to work
• Breakdown in relationships
• Inability to sleep, eat and function day to day
• Inability to work
• Suicidal thoughts (and actions)

Consequences for employers

If sexual harassment occurs in the workplace an employer can be held liable for a breach of their duty of care and as result may be liable for compensation if the complainant suffers a damage.

Complainants may also have the opportunity to take legal action against an employer

 Consequences for engaging in workplace sexual harassment

You may be the subject of a formal investigation into your behaviour.

You may be terminated if your behaviour is considered to be sexual harassment or a breach of your company’s behavioural policy or Code of Conduct.

You may be the subject of a complaint of sexual harassment to the Australian Human Rights Commission.

You may be subject to private civil litigation as a result of your behaviour resulting in reputational damage within the company and outside.

You may have difficulty securing further employment, especially if you conduct is on record.

How AWPTI can help

We can provide training to your employees to assist you to ensure that they understand what workplace sexual harassment is and what to do if they are subjected to or witness it – Details here

We can provide training for your HR professionals and managers to train them to conduct workplace investigations using best practice methods, details here

We can provide full service investigation support should you wish to outsource matters – details here