Sexual harassment is still alive and thriving

| March 20, 2012

Every year, workplace sexual harassment is one of the most common complaints received by the Australian Human Rights Commission. Lawyer Alison Page looks at how it continues to thrive in our work environments.

In February the Sydney Morning Herald reported the case of a senior executive of the Star City Casino being dismissed in the wake of complaints she made of sexual harassment against Sid Vaikunta, who was sacked late last year for the misconduct.

Sadly, both the victimisation of the complainant and sexual harassment are still present in workplaces in Australia.

As efforts to curb both intensify with ongoing changes to whistle-blower legislation and the changes to OH&S legislation, there is an increasing onus of responsibility on the employer to keep the workplace safe.

Last year Australian Defence Force Academy (ADFA) cadets were involved in a widely publicised incident involving allegations of inappropriate behaviour and the use of technology, which led to a police investigation.

Consequently the Commonwealth Government engaged the Australian Human Rights Commission (the AHRC) to undertake a wide-ranging cultural review of ADFA, with a specific focus on the impact of that culture on women. During this review the AHRC considered anecdotes of wide ranging types of misconduct directed at female cadets.

The review made new distinctions in the type of behaviour understood to constitute sexual harassment, including a new concept of “low level” sexual harassment.

The ADFA is a unique environment where armed services cadets live, work, study and socialise together, creating greater opportunities for incidents of unacceptable behaviour than more orthodox working environments (AHRC, 2011 page 31).

Notwithstanding this unusual environment, and even though the AHRC did not actually investigate any allegations of inappropriate conduct, other workplaces can still draw on, and learn from, the typology used in AHRC’s cultural review and AHRC’s opinions on the seriousness of certain conduct.

As the AHRC noted, concepts of gender equality, diversity and inclusion can be controversial in any organisation and are often met with skepticism or are misunderstood. (AHRC, 2011, Page 61). Often people who have been subjected to inappropriate conduct know that they have been treated poorly but have difficulties conceptualising the conduct. This either hinders that person from making a complaint or, if they do complain, they may not be able to properly describe the conduct to those investigating it, lessening its probative value. These difficulties also highlight the need for training.

The AHRC’s report contains some helpful discussion for those responsible for conducting and managing workplace investigations involving allegations inappropriate conduct directed at women. It is also useful for those who are responsible for training staff about gender and other diversity related issues including discrimination and complaints procedures.

The Report was based on qualitative and quantitative information gathered from various sources including reviews of relevant ADFA policies and procedures, previous ADFA reports which considered gender and diversity issues, interviews with key personnel, workshops with current cadets’ focus groups with representatives from different stakeholder groups, written submissions and surveys into unacceptable behaviour at ADFA.

According to AHRC “unacceptable behaviours can range widely in their degree of seriousness, from inappropriate comments or a highly sexualised work environment through to serious sexual abuse or criminal sexual assault.”

AHRC reported that widespread “low level” sexual harassment was rife at ADFA. This behaviour manifested in the form of sexualised language and sexist behaviours such as “scoring a trifecta” (meaning having engaging in sexual relations with a 1st year female cadet from each of the armed services) or the use of language which commodified women (for example referring to women as “game”).

The Unacceptable Behaviour Survey conducted as part of AHRC’s review is particularly helpful as it gives some interesting insights into the AHRC’s typology used to classify inappropriate behaviour directed at women. Gender and sex-related harassment questions were split into five categories:

Sexist behaviours – such commonly occurring behaviour at ADFA included:
•    Treating others differently because of their gender
•    Making offensive sexist remarks
•    Putting down or being condescending to others because of their gender

Crude/offensive behaviours – statistically significant behaviour reported through the survey included:
•    Telling offensive jokes or repeatedly telling sexual stories
•    Making unwelcomed attempts to draw females into discussions of a sexual nature

Unwanted sexual attention/seduction – statistically significant behaviour reported through the survey included:
•    Whistling, calling or hooting in a sexual way
•    Staring, leering or ogling at others in a way that made them feel uncomfortable
•    Making offensive remarks about another’s appearance, body or sexual activities
•    Making unwelcomed attempts to establish a romantic sexual relationship despite making efforts to discourage it
•    Continually asking another person out after they have said ‘no’
•    Sexual bribery/threat

Sexual assault – this behaviour was regarded by AHRC as being at “the more serious end of the spectrum”. The Review discovered that in the past 12 months there had been instances of:
•    Forcing another person into sex without their consent or against their will
•    Treating another person badly for refusing to have sex
•    Touching another person in a way that made them feel uncomfortable.

The Survey also contained questions in relation to general harassment and electronic harassment. The most commonly reported behaviour experienced was “insulting comments about physical characteristics, abilities or mannerisms” (page 34). Other statistically significant conduct against women included:
•    Spreading malicious rumours or public statements of a derogatory nature about other people
•    Treating women differently, victimising or harassing them due to their medical status or impairment, medical condition, disability, pregnancy or potential pregnancy
•    Excluding women form normal conversations or workplace activities and work-related social activities.

By taking a closer look at the methodology and definitions used in this report all workplaces can assess their work environment for evidence of sexist and sexually harassing behaviour. Whilst much sexual harassment is directly attributable to the bad behaviour of an individual it rarely survives in a culture where it is not tolerated and it thrives in a culture where it is exonerated.

Organisations need to reflect on the workplace culture, conduct surveys, leaving interviews and record and listen to complaints carefully to gain an understanding of the risks presented in their unique work environment.

Alison Page is legal council for Wise Workplace Investigations. She specialises in employment, industrial relations and organisational behaviour issues. Alison Page has had more than 10 years’ experience as a corporate litigation and transactions lawyer in both private and in-house practice.  


One Comment

  1. Avatar

    Neil Primrose

    April 3, 2012 at 6:48 am

    Thanks for posting Alison’s
    Thanks for posting Alison’s blog. Important to have the concepts and the practical detail. The culture of every organisation needs to be set by its board (or equivalent governing body) and this issue,in particular, shows the need for women on boards, inter alia, to help awareness if the issue and set the culture of valuing all the people in the organisation and avoiding Allison’s “typology used to classify inappropriate behaviour directed at women”.