Sexual Harassment still part of the employment playground | WISE Workplace

By WISE legal counSEL

Earlier this month 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, sacked late last year for the misconduct.

Sadly both the victimization of the complainant and sexual harassment are still present in workplaces in Australia. As efforts to curb both intensify with ongoing changes to whistleblower 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 publicized 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 behavior understood to constitute sexual harassment including a new concept of “low level” sexual harassment.

ADFA is a unique environment where armed services cadets live, work, study and socialize 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 organization and are often met with skepticism or are misunderstood. (AHRC, 2011, page 61). Often persons who have been subjected to inappropriate conduct know that they have been treated poorly but have difficulties conceptualizing 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 behavior directed at women. Gender and sex-related harassment questions were split into five categories:

1. Sexist behaviours. Such commonly occurring behaviour at ADFA included 

  • Treating others differently because of their gender
  • Making offensive sexual remarks
  • Putting down or being condescending to others because of their gender. 

2. Crude /offensive behaviours. Statistically significant behaviour reported through the survey included:

  • Telling offensive jokes or repeatedly telling sexual stories
  • Making unwelcome attempts to draw females into discussions of a sexual nature

3. 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 unwelcome attempts to establish a romantic sexual relationship despite making efforts to discourage it
  • Continually asking another person out after they have said 'no'

4. Sexual bribery/threat

5. 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, victimizing 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 behavior 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.