Australia: Sexual harassment: in the spotlight

Sexual harassment is against the law, and it has been for quite some time. Yet, such behaviour is still happening in our workplaces today. Statistics reveal that one in five women say they have experienced sexual harassment in the workplace. About one in ten women say that they have seen such behaviour. It begs the question, why is sexual harassment still prevalent in 2018?

The #metoo movement has shed light on cases where sexual harassment has been covered up, tolerated, or even worse, accepted. Clearly, attitudinal and cultural issues remain hurdles to change. But there are many other factors which need to be addressed, such as fear and under reporting.

The Australian Human Rights Commission has just announced a 12 month national inquiry into sexual harassment. The AHRC will look into, amongst other things:

  • the prevalence, nature and reporting of sexual harassment;
  • the drivers of workplace sexual harassment;
  • the use of technology and social media to perpetrate workplace-related sexual harassment; and
  • existing measures and good practice being undertaken by employers in preventing and responding to workplace sexual harassment

There will be many insights and lessons for employers arising from this inquiry. A more sophisticated approach to eradicating sexual harassment will be needed if real change is to be achieved.

Ahead of the report from this inquiry, we look at 'what is sexual harassment' and some recent cases involving inappropriate conduct of a sexual nature. These cases demonstrate more work is needed, but also send strong messages that such behaviour will not be tolerated. "A new day is on the horizon", one celebrity recently predicted because "magnificent women ... and some pretty phenomenal men" will fight for change. Regulators and tribunals are also pushing change, and so must all workplace participants.

What is sexual harassment?

Discrimination legislation, like the Sex Discrimination Act 1984, essentially defines sexual harassment as an unwelcome sexual advance, an unwelcome request for sexual favours or other unwelcome conduct of a sexual nature.

It matters not whether a person intends to sexually harass the other person. It's about the impact of the behaviour. The test is whether "a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated".

Conduct that is sexual in nature could include:

  • physical contact;
  • flirtations, propositions or advances;
  • whistling, leering, staring and ogling;
  • gestures or remarks, including about an individual's physical appearance; or
  • sexual jokes or the inappropriate use of sexually explicit or offensive language.

Of course, the above behaviours need to be unwelcome. It also needs to be "conduct of a sexual nature". Not all physical contact is sexual in nature, and sexual harassment laws do not prevent asking someone out for dinner (if done appropriately and respectfully).

As said above, in determining whether conduct is sexual harassment, regard needs to be had to all the circumstances surrounding the conduct. These circumstances include the relationship between the person harassed and the person who engaged in the conduct. Any power imbalance or position of authority or seniority is relevant to the assessment.

A "cheeky nature" and Italian heritage

"You are good looking", a male employee said to his female colleague. "What's your telephone number?" he asked. The employee didn't think this behaviour was inappropriate; but the employer thought otherwise and dismissed him.

Mr Sapienza was in his 50s. His female colleagues were as young as 18. Mr Sapienza would get physically close to his female colleagues. He had also asked them "when will you be leaving your boyfriend so we can run away together?" and "you've missed my birthday, where is my kiss?". Mr Sapienza had placed his hands on his colleagues. It can be seen how full context becomes relevant, and creepy.

Mr Sapienza denied the conduct, but accepted he may have asked for a kiss due to his "cheeky nature". As an Italian, he argued, he was used to affection and showing affection. Not a convincing explanation for his behaviour.

The Commission found the dismissal of this employee to be fair: Sapienza v Cash in Transit Pty Ltd T/A Secure Cash [2018] FWC 607. "The considerable age difference" between Mr Sapienza and his female colleagues was a concern. "The explanation provided by the Applicant of showing affection due to his Italian heritage falls short of justification for such behaviour towards otherwise unrelated persons", the Commissioner concluded.

It is clear that the Commission is not prepared to accept this type of behaviour. There is no excuse for this type of behaviour. Having a "cheeky nature" does not entitle a person to make another feel humiliated, intimidated or offended – even if it was not their intention.

Out of hours text messaging

In Reguero-Puente v City of Rockingham [2018] FWC 3148, the Commission upheld the dismissal of a senior employee, Mr Reguero-Puente, who sent "overfamiliar, sexually loaded and sexually explicit texts and images to young female co-workers, often late at night and in the early hours of the morning".

Mr Reguero-Puente was 45 years old. One of his female colleagues, who received a photo of his genitalia and 70 messages in one night, was 23 years old. Remarkably, Mr Reguero-Puente's defence was that the recipients of his text messages should have told him to stop if they didn't welcome it.

"This is not a case of an office romance between consenting adults", Deputy President Binet exclaimed, "Mr Reguero-Puente's own evidence reveals a pattern of him befriending much younger female subordinates and then progressively sending more frequent and increasingly less appropriate messages".

The Commission sternly observed:

In this day and age young women should not have to tell their older superiors that they do not want to be sent salacious texts during or after working hours, nor have comments of a sexual nature made about them, or be directed toward them in their workplace.

As said above, a relevant circumstance is an employee's seniority. It is time for leaders, managers, supervisors and those with work experience, to step up and demonstrate the highest standards of professional and respectful behaviour.

Conclusion

The statistics on sexual harassment are horrifying. The fact this behaviour still occurs is alarming. We must all be safe in the workplace.

We are hopeful that the #metoo movement, and the inquiry, will make a real difference to ending sexual harassment at work. By highlighting good practice and making recommendations, the AHRC will help set standards for all business.

In the meantime, some simple steps employers can take include:

  1. develop or review existing policies on appropriate workplace behaviours, including sexual harassment – remembering sexual harassment is a subset of inappropriate behaviours not welcomed in the workplace;
  2. educate all staff on behaviours expected at work, the risk of out of hours conduct and consequences for inappropriate behaviours – the aim is to create a professional and respectful work environment;
  3. foster a culture that encourages reporting of poor behaviour, including reporting by observers and with ramifications for any victimisation; and
  4. ensuring managers lead in demonstrating appropriate and respectful behaviours and critically, respond promptly to complaints or reports of poor behaviours. Standing by or not acting because there is no "formal complaint" is a poor excuse for inaction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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