Our legal system makes it difficult for women to come forward with workplace sexual harassment claims. A victim-centred approach would help.

Last week, sexual harassment in workplaces dominated the headlines. The media abounded with reports of, and commentary on, the findings of an investigation by the High Court into allegations of sexual harassment by former judge, Dyson Heydon.

In addition, Victoria Police announced that it had closed an investigation into allegations of sexual assault against former Lord Mayor of Melbourne Robert Doyle. This inquiry followed on from the Council’s internal investigations into complaints by three women.

Leading labour law scholars Bogg and Freedland have described workplace sexual harassment as ‘one of the most challenging regulatory issues of our time’.

Last week’s revelations suggest that even the most hallowed workplaces are not immune from this type of behaviour, nor are there always adequate processes in place that encourage women to come forward.

So why do so many women still choose not to make a complaint if they experience sexual harassment in the workplace?

There are compelling reasons for this.

The situation with Dyson Heydon highlighted some, including:

• the significant power imbalance between the perpetrator and the women who were harassed;
• a pronounced hierarchical structure in the workplace;
• the lack of processes in the workplace to deal with complaints; and
• the fear of speaking out and being labelled a troublemaker.

Following its national inquiry into sexual harassment in Australian workplaces, The ground-breaking Respect@Work report was published in March 2020 by the Australian Human Rights Commission. It illuminates an even broader range of barriers that people face to lodging formal complaints in a workplace or to an outside agency.

The organisational climate

Among other things, Respect@Work examines research on the impact of organisational climate on perpetuating or, conversely, preventing harassment. Organisational reporting and complaint handling mechanisms form part of the organisational climate.

These internal processes can be instrumental in determining whether a victim of sexual harassment comes forward at all, proceeds with their complaint, or is satisfied with the outcome.

Respect@Work compellingly advocates a victim-centred approach to internal complaints handling to produce an organisational climate that prevents harassment and encourages people to come forward if affected by harassment.

For example, it recommends that victim-centred principles guide the procedures adopted by organisations to conduct workplace investigations in response to complaints of harassment.

Moreover, internal workplace investigations should not be regarded as a ‘default’ response to any and all complaints but, instead, should form part of a broader range of responses an organisation might use, having regard to the specific circumstances of the individuals involved.

The purpose of a workplace investigation into allegations of sexual harassment at work also needs to be understood by those within the organisation who are responsible for overseeing and conducting it.

A workplace investigation should not be used to minimise, silence or diminish a person’s complaint in the interest of protecting an organisation’s reputation but instead needs to be a tool used to address the issue and eliminate the risk of future unacceptable conduct.

The events of last week reinforce that all workplaces not only need to have suitable policies about sexual harassment that set out procedures for responding to complaints but also have a framework of training, and policies and practices that operate as a continuum to instil a workplace culture that seeks to proactively prevent sexual harassment from occurring in the first place.

Problems with the legal system

Research has revealed the other factors that victims take into account in deciding whether to pursue a formal legal claim: the legal system is hard to navigate without legal advice, particularly if a woman has multiple claims. She might find herself with a sexual harassment, sex discrimination and workers compensation claim, for example, potentially involving two jurisdictions.

Legal advice and litigation are expensive and sexual harassment claims don’t result in a windfall. In fact, a woman might win in court and still be out of pocket by the time she pays her lawyer.

Women will be advised to settle, thereby avoiding the time, cost and emotion that comes with pursuing a case. Settlement also comes with the protection of confidentiality.

But this process masks the extent to which sexual harassment is occurring.

As last week’s events revealed, it can occur in any workplace, even amongst the most educated and powerful in the country.

Recent research has revealed that sexual harassment is a significant problem amongst the legal profession, with barristers chambers and courts lacking adequate processes to deal with a complaint.

Increasing legal compliance in workplaces

So what can be done to increase compliance? Respect@Work recommends that employers take a preventative, victim-centred approach and put measures in place to reduces the likelihood of sexual harassment occurring in the first place.

Our research supports this approach. Instead of waiting until someone has been sexually harassed, employers should be encouraged to change their culture proactively.

They should be required to review their policies and procedures to ensure that they are complying with the law and train employees on their rights and obligations.

The Victorian Equal Opportunity and Human Rights Commission publishes extensive practice guidelines about preventing sexual harassment for this purpose.

Alongside this, there needs to be a regulator that can wave a ‘big stick’ if an employer does not comply and make sure that it does in the future.

The equality agencies are not currently empowered to do this and the Fair Work Ombudsman’s remit does not extend to sexual harassment.

It shouldn’t be up to the woman who has been sexually harassed, whose career may be left in tatters, to take action on behalf of every other woman in the workplace.

And those who are brave enough to come forward and report sexual harassment must be supported by their workplaces and the legal system.