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?

Some of the most common myths around sexual harassment

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:

  • Staring, leering or unwelcome touching
  • Suggestive comments or jokes
  • Coercive behaviour that is intended to be sexual in nature
  • Sending sexually explicit emails or text messages
  • Repeated unwanted requests to go out on dates
  • Intrusive questions about a person’s private life
  • Requests for sex
  • Displaying posters, magazines or screen savers of a sexual nature
  • Inappropriate advances on social networking sites
  • Accessing sexually explicit internet sites
  • Behaviour that may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications

 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 [2015] 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)[2015] 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) [2008] VCAT 584 – a sexual harassment case where Ms Tan was awarded general damages of $100,000. Link to case

Poniatowska v Hickinbotham [2009] 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) [2013] 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 [2013] VCAT 221 – a sexual harassment case where a general damages award of $100,000 was made Link to case

Richardson v Oracle [2014] 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/

Views: 163

Comment by Bernard Keith Althofer on May 12, 2017 at 11:50

Phil,  You identify some important myths when it comes to addressing sexual harassment.

As  Sexual Harassment Referral Officer, I sometimes found that the initial inquiry was couched in terms that required some specific questioning.  Some of those targets felt as though they would be ridiculed for complaining in  a 'blokey' environment.  One also needs to understand that a complaint can and may be made by those not present at the time.  For example, in one case, a worker showed co-workers some questionable content after first telling them what the content was.  They all laughed at the time and no complaint was immediately forthcoming.  One of those present went and told their partner who told them to make a complaint.  When the individual who initially showed the content to the co-workers was investigated and directed to attend one on one training, their first question was "If I have to do this, why aren't the others being trained.  Management knew about it and it looked like they condoned it."

In some workplaces a joke will be told and because no-one complains or objects, the joke is seen as acceptable.  This then leads to a problem when one person tells a joke that others find 'offensive but acceptable' whereas another worker can tell the same joke or say something that is offensive, and yet the same group of workers find it creepy and unacceptable and tell the worker that.

Understanding the workplace culture is a critical aspect when addressing the myths identified. As an increasing number of Court, Commission and Tribunals are making adverse findings about sexual harassment, actions taken (or not taken), it is important to provide managers and workers with an opportunity to have face to face discussions where there can be shared knowledge and understanding about what actually constitutes sexual harassment and the consequences thereof.

Comment by Phil O'Brien on May 12, 2017 at 12:12

Agreed Bernie,

You make some very valid points, I have developed a number of training programs one that deal with sexual harassment. http://awpti.com.au/employee-training/

It always amazes me how many people, staff and managers are not aware of the behaviours other than the obvious that may constitute sexual harassment. They all tend to sit up and take notice when i refer them to cases such as Mathews v Winslow.

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