In spite of a number of matters in courts and tribunals sexual harassment in the workplace continues to be an issue.
As a workplace investigator and trainer I come across many opinions, beliefs and myths about what is and what is not sexual harassment and where is the line drawn?
Myth: I can’t report sexual harassment as no one will believe me
Fact: In many cases sexual harassers are serial offenders, known as the office sleaze, the person to keep away from. Many people especially young women are told early on “look out for him he’s a real sleaze” or similar.
Management and HR are in a much better position to take action if they have information to act upon.
The best way to help stop these people is take a stand, refuse to be the victim and report it HR or management. Not allowing yourself to be a victim is courageous and empowering.
Myth: As a HR professional or manager I can’t do anything about sexual harassment unless someone makes a complaint.
Fact: If you see it, hear about it, know about it or suspect that sexual harassment is occurring you should/must take some action.
You have a duty of care to ensure that all reasonable steps are taken to prevent sexual harassment in the workplace. Don’t make excuses, they may come back to bite you.
Myth: It’s not sexual harassment if “I didn’t mean anything by it” or “I was only joking”
Fact: Most, if not all harasses are well aware of what they are doing, do not accept this excuse, especially if the harasser has been told that the behaviour or comment are not acceptable or has been told to stop.
Myth: If I ask a co-worker out on a date she/he can claim that it is sexual harassment
Fact: It is not sexual harassment to ask a co-worker out on a date; HOWEVER if you are asking a co-worker out on a date after being previously refused, ignored or not receiving a definitive answer YES – it can be sexual harassment.
Myth: If I have already dated a co-worker she/he cannot claim that it is sexual harassment if I keep asking them out.
Fact: Once again it may not be sexual harassment if they consent but it is sexual harassment if they decline further dates, no matter how many you have been on.
Just because they went out with you once, twice or many times does not mean they do not have the right for future refusal.
Myth: It is not sexual harassment if they don’t really say ‘no’ when I keep asking them out or making those sort of suggestions.
Fact: Often the recipient of the request may feel awkward in saying no and may change the subject or avoid answering the question or say something like “I don’t know if I’m free, I’ll get back to you.”
If there is a power imbalance, for example manager and direct report, or manager and other staff member again the recipient of the request/s could be fearful that a direct refusal may harm their career or position in the company.
The golden rule is if they don’t say a clear absolute unambiguous YES then it’s a NO.
Myth: It is not sexual harassment if I am only texting.
Fact: Sexually harassing someone via text, Facebook or any other social media or carriage is still sexual harassment.
Myth: It is not necessarily sexual harassment for a boss or manager to ask a co-worker out on a date.
Fact: It’s not, but using your power or seniority to coerce a co-worker into going out with you – bit of no brainer there, YES of course it is (You would be amazed that the complaints of that nature I have investigated).
Myth: Making a comment about how someone looks is not sexual harassment
Fact: Commenting “You look nice today” in a neutral friendly manner, is not sexual harassment.
Commenting “You look nice today” in a leering looking up and down suggestive or sleazy manner – YES that is sexual harassment.
Myth: I am a tactile person so touching is not sexual harassment
Fact: Seriously, (and yes I have heard that excuse) here is a simple rule, respect other people’s personal space, don’t do it, don’t touch unless clearly invited to do so.
Myth: Sending or giving a co-worker gifts or tokens of your affection is not sexual harassment
Fact: I have dealt with many complaints where this happens after an initial indication that the attention is unwelcome.
In this case YES this can be construed as sexual harassment. Remember unless it is a definite YES then assume it’s a NO. In this case persistence is not a virtue
Myth: In the past we have had mutually acceptable sexual conversations and/or a consensual sexual relationship so wanting to continue is not sexual harassment
Fact: These are examples of behaviour that is not generally regarded sexual harassment due to the consensual nature.
HOWEVER should one party decide not to continue the relationship or conversational banter, when the other party is made aware of this should they desist immediately as continuing past this point may constitute sexual harassment.
Myth: I really don’t know what is classed as sexual harassment.
Fact: Here are some examples of sexual harassment that might be helpful to assist in understanding:
Myth: As a business or employer sexual harassment is a matter between the two parties, it’s not a workplace issue.
Fact: Ponder these court cases that clearly illustrate the effects of sexual harassment in the workplace on businesses and employers:
Mathews v Winslow Constructors (Vic) Pty Ltd  VSC a breach of duty of care in a sexual harassment matter in which the Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, sexual harassment and bullying by her colleagues. Link to case
Collins v Smith (Human Rights) VCAT awarded more than $330,000 as compensation to Ms Collins, an employee who had been repeatedly sexually harassed by her employer, Mr Smith, the owner and manager of the Geelong West Licensed Post Office. Link to case
Tan v Xenos (No 3)  VCAT 584 – a sexual harassment case where Ms Tan was awarded general damages of $100,000. Link to case
Poniatowska v Hickinbotham  FCA 680, a sexual harassment case where the complainant was awarded $90,000 general damages in a total award of $466,000. Link to case
Ewin v Vergara (No 3)  FCA 1311 – a sexual harassment case where Ms Ewin was awarded $110,000 in general damages and $293,000 for loss of past earning capacity. Link to case
GLS v PLP  VCAT 221 – a sexual harassment case where a general damages award of $100,000 was made Link to case
Richardson v Oracle  FCAFC 82 – a sexual harassment case where Ms Richardson was awarded general damages of $100,000 in a total award of $130,000. Link to case
The best way to avoid confusion and to make sure you have complied with your responsibilities is to train your staff. The money you spend on training may save you in the long run, should things ever go wrong.
If you would like to know about tailored training session for your employees and managers including the popular 60 – 90 minute lunch and learn sessions please contact me – http://awpti.com.au/employee-training/
If you receive a complaint and are unsure about the process it pays to call in an expert. Once again AWPTI can assist you in this regard – http://awpti.com.au/investigations/
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