It is extraordinary that as we approach some fifty years of laws in Australia making sexual harassment unlawful, its occurrence continues to attract an exponential amount of sensational, if not salacious, reporting and publicity. But just what does the future hold for sexual harassment in 2020 and beyond?
What is particularly interesting about the reporting of sexual harassment cases in the media, and what leads to it becoming a tactic of lawyers who act for applicants or plaintiffs in these cases, is the didactic nature of many claims that are brought and that are subsequently reported in the media. The "outrage" that someone engaged in conduct as "a married man" or that two people carried on a consensual affair as colleagues is, regrettably, a narrative that not only detracts from the legitimacy of real sexual harassment cases but also has a catastrophic impact on the need to address barriers for women progressing in the workforce. The legal/PR strategy is simple: cause enough embarrassment and you maximise your client's settlement chances because you have become a "life disruptor".
Let's be clear: sexual harassment is fundamentally defined as conduct which is "unwelcome". In nearly every sexual harassment case I have advised on or defended in my career (and there have been hundreds), the person who has brought the claim of sexual harassment has not said to the alleged harasser at the earliest available opportunity: "I find your conduct to be unwelcome". In fact, in a significant number of those cases there was some conduct engaged in by the complainant that was of a complicit nature. In fairness, when I talk about "complicit" conduct I may be talking about nothing more than an uncomfortable laugh, an awkward smile in the hope that the conduct might stop or an unsuccessful attempt at changing the topic of conversation. The reason I describe this as "complicit" is because there is no list of commandments as to behaviour that is automatically sexual harassment. An explicit sexual remark, a request that someone goes out with another person or even a kiss is not sexual harassment where that conduct is welcomed by the person who is the recipient of that conduct.
The question that therefore requires addressing at some level, sociologically as much as legally is a simple one: are we interested in ensuring that the law is not breached by people when at work OR are we interested in policing the behaviour of people when they are at work so that we can embarrass and humiliate them (regardless of whether they have breached the law)?
A senior (male) HR manager with whom I worked for many years once said to me that the practical situation for males to deal with any risk of claims was to simply "not go there". His advice, imparted to many male employees within his organisation when it came to how they should interact with female colleagues, was as black and white as "don't make jokes, don't be friendly, don't discuss anything of a personal nature, never discuss how she looks or is dressed, don't ever find yourself in a situation where you are alone with them, and most certainly don't ever make any physical contact." Much of this "advice" was imparted in the period of the late 90s and the early 2000s. None of this advice was suggested in respect of a male's conduct towards other male colleagues.
It was with great interest then that, some nearly 20 or so years after these pearls of wisdom were shared with me, when I attended an international conference of labour and employment lawyers one of my American counterparts put this viewpoint in a post-#metoo context. He said that in his high-profile US law firm, male Partners had as a result of #metoo ceased to:
- have any meetings or conference calls with female subordinates/peers with their doors closed unless there was another person present; or
- involve female subordinates in any matters which would require travel and certainly any travel requiring overnight stays.
Was it the case that these well-regarded, highly-educated and extraordinarily successful lawyers at this firm were concerned that they would now not be able to engage in illegal activity, being sexual harassment? Was it the case that they were concocting elaborate plans to engage in sexual harassment of which they were now thinking better? Were they a bunch of sleazebags who just didn't want to get caught?
I think, as a general proposition, none of the above.
Rather, this was a very natural and understandable reaction (albeit perhaps an over-reaction) from people not wanting to be embarrassed and humiliated because they could see it taking very little for a single comment, remark or action on their part resulting in their entire careers, livelihoods and family lives being destroyed. They could foresee that their attempts at explaining context would fall on deaf ears or be seen as a lame attempt at an apology.
Sexual harassment in 2020 and beyond is going to be infinitely more difficult to manage for organisations than has ever been the case. Not because the law has changed, not because there are more people behaving badly and not even because there are more opportunistic claims. It's simply because the boundaries between a legal issue and a "moral" one have become awkwardly and terribly conflated.
Organisations will have to make some critical decisions on exactly what they stand for and what they don't, but in so doing they have to be very careful that they have not lost sight of the big picture issues of equality and fairness.
Joydeep Hor BA LLB (Hons) LLM FAHRI CFCIPD Graduate of Harvard Business School's Owner-President Management Program
Joydeep Hor will be presenting a webinar on "#metoo and the New Sexual Harassment" on Wednesday 19 August 2020 at midday Sydney time. Register for the webinar HERE.
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