A Bad Business - Foreword
A Bad Business
(Review of sexual harassment in employment complaints 2002)
Foreword
In
a modern workforce where men and women work side by side it is important
that employers protect their employees from unwanted behaviour that
is not only harmful to the employee involved but also unprofessional
and unproductive for the workplace. Sexual harassment is one form of
unwanted behaviour that attempts to exclude individuals from the workplace
by focusing on the sex of the person involved. Sexual harassment can
happen in many different situations but overwhelmingly the complaints
we receive involve the workplace. Harassment, bullying and exclusion
may also be motivated by and focused on other characteristics of a person
such as race, culture or disability. It can also just be personal.
Ninety-five per cent of the complaints
of sexual harassment in employment that we finalised in 2002 were made
by women. This indicates a significant barrier to women鈥檚 full
participation in the workforce. Identifying and addressing such systemic
discrimination against women is essential to achieving equality between
men and women.
Although Australian legislation outlawing
sexual harassment was enacted almost twenty years ago and many organisations
have well developed policies for dealing with it, there is still confusion
about what sexual harassment is and how it should be managed by employers.
Naturally all behaviour exists on a continuum of acceptability and sexual
harassment may sometimes be confused with friendship, flirtation or
consensual relations. However the importance of ensuring that people
are treated respectfully, are able to go about their daily lives with
dignity and work in a professional environment are clearly minimum standards
employers and all service providers need to be able to ensure.
This review of sexual harassment complaints
finalised by the Human Rights and Equal Opportunity Commission (HREOC)
in 2002 was sparked by the annual complaints figures, which demonstrate
that, year after year, sexual harassment remains a significant percentage
of complaints. What is more, the number of complaints on this ground
has increased by just over 20 per cent in the last four years.
HREOC鈥檚 complaints information
is not kept for the purpose of policy research and for this reason the
review has sometimes struggled with the limited data available. In addition
to this, HREOC鈥檚 complaints process does not seek to find a party
liable for sexual harassment, but only to conciliate between the parties.
This means all information regarding the conduct must be treated as
allegations rather than as proven facts. However the review鈥檚
major findings have certainly been sufficiently unambiguous to warrant
drawing a number of conclusions, including the need for a national survey.
HREOC has already commissioned this survey and the results will be published
early in 2004.
For employers and policy makers, it
is particularly worth noting that although 60 per cent of the alleged
harassers were senior to the alleged victims, 40 per cent were not.
In other words they were co-workers, or less often, clients or service
providers. The development of sexual harassment policies and their implementation
needs to take this into account; employers are liable if their policies
are either inadequate or not implemented fully. In those 22 per cent
of cases where the harassment continued for more than 12 months, clearly
the workplace policy, or its implementation, had failed to empower its
employees to seek the effective protection of the employer. The fact
that most complainants (78 per cent) report the harassment within their
workplace first suggests that employees expect their employers to meet
a duty of care. Failure to adequately deal with a complaint contributes
to the ultimate liability of an employer.
In almost all cases resolved at HREOC,
the employer agreed to compensate the complainant either as well as
or instead of the alleged harasser, a further price paid by employers
who had failed to prevent or satisfactorily resolve the complaints themselves.
The compensation paid by employers
is in addition to the organisational cost of losing the employee who
has claimed harassment. Perhaps the most significant finding of the
paper is that at least 77 per cent of all complainants had either left
the organisation where the alleged harassment occurred or taken leave.
This represents a considerable cost in recruitment, training and development,
in addition to the indirect cost associated with loss of staff morale
inevitably arising from unresolved disputes within workplaces. Of course,
it also gives an indication of the significance of these experiences
to complainants and the disruption that it is likely to have caused
in their lives. The data do not allow us to conclude whether the disruption
is caused by the experience of harassment or by the fact of taking action
on it. I hope that the national survey to be published next year will
shed light on this. Nevertheless, it is clear that those who experience
sexual harassment have suffered a breach of their workplace rights.
It is also significant that sexual
harassment remains an issue for business of any size; small business
is so often singled out for criticism but the complaints review demonstrates
that sexual harassment occurs across business. That almost a quarter
(23 per cent) of reported cases involved sexual physical behaviour indicates
a degree of seriousness that requires employers to act immediately.
The review should prove a useful guide
for policy makers and anyone involved in people management. I commend
it to leaders of business, large or small. The review also makes the
case for employers to conscientiously review their sexual harassment
policies and policy implementation, as well as their workplace culture.
Increasingly victims of harassment will make complaints; employers who
condone, ignore or fail to act against this conduct bear considerable
risk.
This
first publication will be built upon by a suite of materials to be produced
in 2004. Together, I hope they will make a contribution towards the
important work of eliminating sexual harassment in Australian workplaces.
However, the real responsibility for that work lies with each of us.
Pru Goward
Sex Discrimination Commissioner
Human Rights and Equal Opportunity Commission
12 November 2003
Last
updated: 12 November 2003