Australian researchers at Monash University have argued that instead of waiting until someone has been sexually harassed, employers should be required to change their culture proactively. The researchers believe the coronavirus (COVID-19) pandemic has created working conditions that make it harder for businesses to detect inappropriate behaviour and can impede investigations when they are conducted remotely. Associate Professor Dominique Allen and Adriana Orifici, legal researchers from the Department of Business Law and Taxation in the Monash Business School, believe that women who experience sexual harassment while at work choose not to make complaints due to barriers in the legal system.
Employers faced many challenges in monitoring employee conduct prior to the pandemic, but the advent of virtual communications platforms and their recent ubiquity could exacerbate permeable boundaries between employees’ work and private lives. Orifici believes that remote work arrangements make employers more reliant on affected employees coming forward with complaints in order to detect potential misconduct. “It is vital that employers invest time in promoting a workplace culture, for example through training, targeted communications, policies and procedures, which reinforces expectations regarding employee behaviours, to minimise the chances of unsuitable behaviours occurring,” Orifici said.
Sexual harassment in the workplace has become increasingly prevalent in the headlines, with the findings of an investigation by the High Court into allegations of sexual harassment by former Justice of the High Court Dyson Heydon and Victoria’s closure of an investigation into allegations of sexual assault against former Lord Mayor of Melbourne Robert Doyle. The researchers said the allegations against Heydon highlighted some reasons why women might not raise issues of sexual harassment at work, such as a significant power imbalance between the perpetrator and the women who were harassed, a pronounced hierarchical structure in the workplace, lack of workplace processes to deal with complaints, and fear of speaking out and being labelled as a troublemaker.
Sexual harassment claims do not result in a windfall, Associate Professor Allen explained, as legal advice and litigation are expensive. Women may win in court and still be out of pocket by the time they pay their lawyers. Women are also advised to settle, as settlement comes with the protection of confidentiality and avoids the time, cost and emotion that comes with pursuing a case. “It shouldn’t be up to the woman who has been sexually harassed,” Associate Professor Allen said, “whose career may be left in tatters, to take action on behalf of every other woman in the workplace.”
Associate Professor Allen has urged workplaces and the legal system to support those who come forward and report sexual harassment. “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 [comply] in the future,” Associate Professor Allen said. “The equality agencies are not currently empowered to do this and the Fair Work Ombudsman’s remit does not extend to sexual harassment.”
Orifici noted that people who experience sexual harassment are more likely to come forward if there is a transparent, robust and credible process by which an organisation responds to issues. “A workplace investigation should not be used to minimise, silence or diminish a person’s complaint but instead needs to be a tool used to address the issue and eliminate the risk of future unacceptable conduct,” Orifici said. Orifici added that “all workplaces not only need to have suitable policies about sexual harassment that set out procedures for responding to complaints, but also have policies and practices that instil a workplace culture that seeks to proactively prevent sexual harassment from occurring in the first place”.
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