"Can't you take a joke!":
Sexual harassment at work.
Val Marsden & Meredith Lane-Richardson
Sexual harassment of women employees has been going on for as long as women and men have worked in the same workplace. One of the first legally documented examples of sexual harassment occurred in the early 1900s in Toronto, Canada, when a woman was blatantly physically and sexually harassed by the man who employed her as a domestic worker. In this instance, the victim took the law into her own hands, shooting and killing the harasser. Interestingly, since this occurred in 1915, the jury acquitted her because of the seriousness of the sexual harassment she had been forced to endure on the job.
Despite this early example, it was not until the 1970s that the term 'sexual harassment' came into general use to describe the kinds of behaviour that women had been finding offensive for so long, and felt powerless to do anything about. It was American author, Lyn Farley, in her book Sexual Shakedown: the Sexual Harassment of Women on the Job who brought the issue into the public arena for the first time in 1978.
Lyn Farley, and a group of other women researching the area of women and work, began to see a pattern in their own experiences: most of them had left or been fired from jobs because of the behaviour of men. They organised speak-outs and surveyed other women and began to document the significance of this behaviour. This breakthrough opened up the issue for discussion and action throughout the industrialised world.
Legislative responses to sexual harassment
Once the offensive behaviour had been named it became visible and, as such targetable as an offence which needed to be stamped out. In 1984 both the Commonwealth and Western Australia governments passed legislation to outlaw discrimination and sexual harassment. The Western Australian Act (the Equal Opportunity Act 1984) makes sexual harassment unlawful in employment, education and accommodation. A 1992 amendment to the Act removed the necessity to have a common employer. This means that an employee may not sexually harass an employee of another employer. It also means that sexual harassment of an employee is unlawful whether the harasser is their employer; their supervisor; a co-worker; a customer; a client or any other person with whom the employee has contact in the course of their employment.
In 1992 an amendment to the Commonwealth Sex Discrimination Act 1984 made it unlawful for an adult student (a student 16 years or over) to sexually harass other students over 16 years of age or staff.
All States and Territories now have legislation which prohibits sexual harassment in certain areas. The Queensland Anti Discrimination Act 1991 is probably the most comprehensive in its coverage. Sexual harassment under the Queensland Act is not restricted to any particular areas such as work or education, but applies generally in Queensland. This means that it covers sexual harassment in any situation at all. However, because of the extent of this coverage, the victim is required to show that the harasser intended to offend. Intent is not an issue in any other jurisdiction, it is the effect of the behaviour that determines whether it is sexual harassment or not.
Differing perceptions of behaviour by men and women are important here. A man may believe if he persists with his requests for dates, for example, that he will break down a woman's resistance. If, from the woman's point of view, his persistence is offensive, she may well feel threatened and intimidated, especially if he is her boss. Often, a woman's reaction is trivialised: 'Oh, can't you take a joke' or 'Don't you have a sense of humour', which puts the recipient of the behaviour in the invidious position of not only having to fend off the behaviour, but also to explain and justify her reaction to it. Again, the unequal power relationship between harasser and victim leaves little room for unsupported action.
The reason that many men fail to understand how demeaning and offensive sexual harassment is, stems from the fact that the vast majority of them have never had to experience it. Very often men will say 'I wish somebody would harass me' and wonder why women don't think this is funny. Triulzi, who is a consultant in this area, points out that 'Harassment has survived in locker room attitudes for a very long time, men's thinking and conditioning, their socialisation has perpetuated their attitudes and behaviours. And why is this? It is because there has been an acceptance in our society - through silence - for the bastardisation and demeaning of men in some work environments with the rationale that "this will toughen him up. Make a man of him". Is it any wonder then, that men have difficulty in understanding why women feel angry, humiliated, offended and frustrated with harassing attitudes and behaviours in the workplace - particularly when such behaviour was only meant to be a "bit of fun" or to see "how much she could take"?'
High profile cases such as that of Anita Hill/Clarence Thomas in the United States and the recent controversy surrounding Helen Garner's highly personal examination of a case involving women students and the Master of Ormond College at the University of Melbourne, have forced unprecedented public debate about sexual harassment in an effort to determine just what it isn't as well as what it is. The debate has often shed more heat than light and it is questionable whether it has advanced the issue, or caused many women to continue to endure unlawful behaviour simply because they are now, more than ever, afraid of the consequences of speaking out. Despite this, at least in the Anita Hill case, the resultant publicity highlighted the issue of sexual harassment as never before and politicised many women in a way that few issues have ever done.
What is Sexual Harassment?
By definition, sexual harassment is any unsolicited and unwelcome conduct of a sexual nature that creates an uncomfortable working or learning environment for the recipient. The key concept, that is enshrined in the Commonwealth Sex Discrimination Act 1984, and other State and Territory legislation, is that of 'unwelcomeness'. This means that it is up to the recipient to define which behaviours are unwelcome to them. This is saying that everyone has the right to have their views and feelings respected, and it is also saying that everyone has the responsibility to clearly state their views and feelings.
Sexual harassment is a strategy people use to keep others in their place. In dealing with it effectively, it must be recognised that sexual harassment is not about sexuality, it is about maintaining, establishing or disrupting power relationships.
In western society power relationships are premised by the expectation that each person will belong to one social category or its opposite. These categories include such social 'opposites' as male/female, old/young, rich/poor, one culture/another culture, heterosexual/homosexual, superordinate/subordinate, us/them. Within these pairs, one is positioned as being more valuable than, or ascendant to, the other. These social values and categories are kept intact by category maintenance activities that encourage others to stay within their 'appropriate' category. One of the ways category boundaries are maintained is through sexual harassment.
For example, when an older man sexually harasses a younger woman, he is not only establishing his power over her as a man, but also as an older man. If he is also her boss, then he is reinforcing her financial and professional dependence on him, and if they are from different cultural groups he is also positioning himself as more culturally significant. In all of these situations, the man is positioning the woman as 'other' to himself and she is being positioned as less powerful in a range of ways. Through sexual harassment he is abusing his formal power, but he is also reinforcing his personal power by positioning himself within categories that are favoured in western culture.
When a boy sexually harasses his teacher he is attempting to disrupt the power relationships of teacher/student, where teacher is the ascendant category. If the teacher is a woman, the student is tapping into the male/female binarism with himself as male in the ascendant category. If the teacher is a man, the student will probably position the teacher as impotent or homosexual and himself in the ascendant category of virile heterosexual.
When a male teacher sexually harasses a student he is reinforcing his power both as a man and as a teacher or, in the university setting, as a lecturer. Sexual harassment in this situation, where the teacher has a duty of care to the student or the student is dependent on the teacher/lecturer's objective assessment of her work, is therefore doubly reprehensible.
Most cases of sexual harassment that have been taken to equal opportunity tribunals around Australia have come from young women working in small businesses. They are usually women with few skills or resources, often they are poorly educated and they have very little money.
This is not to deny that sexual harassment happens to women who are highly skilled and hold responsible positions in the workforce, because it does and it has the same devastating, demoralising effect on a woman's self-esteem or physical or mental health.
When sexual harassment happens to women (and most victims are women) most simply want the offensive behaviour to stop. They generally do not want the perpetrator to lose his job or go to gaol, nor do they want to sue their employer. Despite the prevalence of myths to the contrary, which are fuelled by films such as Disclosure, the incidence of mischievous complaints is so small as to be statistically negligible. More often than not, women do not report harassment for fear of losing their job, or they simply leave the job rather than put up with the harassment.
Women's fear that they will lose their job if they complain is well founded. Many, in fact, have. Triulzi argues that the threat of dismissal has long been a weapon used against the least powerful in the workplace and that '... sexual harassment in non-traditional jobs is to keep women out: its function in the traditional female job sector is to keep women down. Lyn Farley, in her earlier work, also argued that sexual harassment at work arises out of 'man's need to maintain his control of female labour' and that it is a major element in maintaining a sex segregated workforce.
What is being done about it?
Because of the Vicarious Liability provisions of equal opportunity legislation, employers have a responsibility to take active steps to eliminate sexual harassment in their workplace. They also have a responsibility to ensure its continued absence by fostering a workplace culture that does not condone or tolerate any form of harassing behaviour. This is a big task and not one that's likely to be accomplished overnight. This should not, however, prevent any employer from tackling it; the costs, both human and economic, are simply too great.
In the early days of equal opportunity and anti-discrimination legislation, most organisations concentrated on developing a policy on sexual harassment and on awareness-raising - on getting information out to staff about the existence of the act; about what constituted sexual harassment; and generally trying to make employees aware of their responsibilities and rights in relation to the legislation. As case law has accumulated and with increased restructuring of organisations, the focus has changed. There is still a need for awareness-raising, but it is generally recognised that dealing with complaints swiftly at the local level is the most effective way of containing costs and damage.
The Education Department of Western Australia was one of the first Western Australian public sector organisations to have a staff sexual harassment policy and to provide training for senior staff as part of the awareness-raising stage. The policy has been up-dated and re-issued regularly over the years and a network of sexual harassment contact officers exists throughout the system. Most complaints of sexual harassment, however, have been dealt with centrally. As devolution has progressed, responsibility for dealing with complaints is now passing to the 'line managers' - defined as Education Department employees who have responsibility for supervising one or more Department employees and including principals and district superintendents. Assistance is provided by the centrally-located EEO Branch and trained contact officers. Complaints which go direct to the Equal Opportunity Commission are still dealt with centrally.
Sexual harassment is costly to everyone; to the victim, the harasser and the organisation as well. One estimate placed a cost of approximately $40,000 in labour time alone to resolve a workplace harassment complaint to the satisfaction of the complainant. This amount did not include the cost of legal advice; resolution meetings with external bodies; or a compensatory payout; nor did it include the hidden costs such as lost productivity. One large United States company estimated that incidents of sexual harassment cost it $US6.7 million a year in absenteeism, high employee turnover, low morale and poor productivity (Neals, 1989).
Actions that employers can take which will help them to meet their obligations under the legislation include:
Whilst it is desirable to have all staff who supervise others trained, it must be realised that supervisors are often the perpetrators or they may tacitly condone the behaviour of others by allowing a sexually-charged climate to prevail in the workplace. Other avenues for complaint and redress must therefore be offered.
Whatever structures an organisation puts in place to deal with complaints of sexual harassment, the most important point to remember is that each complaint must be taken seriously. Failure to take complaints seriously is the biggest mistake a manager, supervisor or employer can make. Whilst sexual harassment is not an easy or pleasant problem to confront, and many managers and supervisors would prefer to shut their eyes to it, doing this does not make it go away and may increase the likelihood of costly litigation. For example, in the Horne & McIntosh, v Press Clough Joint Venture and the Metals and Engineering Workers' Union case before the West Australian Equal Opportunity Tribunal in 1994, two young women were awarded a total of $92,000 damages for discrimination and victimisation in relation to sexual harassment they had suffered in the workplace.
The Tribunal found that in asserting their statutory right not to be unlawfully discriminated against in employment, the women suffered a backlash of a 'persistent, unpleasant and frightening kind' and the company was found to be vicariously liable for their unlawful victimisation. The union was also found to be liable for the victimisation which occurred because of its failure to take action and its active attempts to dissuade the complainants from taking up the matter with the company.
Damages were awarded against both the union and the company and included compensation for lost wages and damages for hurt and humiliation. The two women were victimised when they complained about offensive posters on the walls of rooms and offices where they worked. Their efforts to have them removed resulted in further, more explicit, offensive and pornographic posters and graffiti appearing, and the women being subjected to verbal abuse by male co-workers.
The Tribunal was highly critical of the fact that despite complaints to their union and to the management, no action was taken to stop the harassment.
The education sector has an added responsibility in relation to this issue. Teachers and education administrators are role models to their students. For this reason their behaviour toward each other is much more 'public' than is that of employees in other workplaces. They have an added responsibility to ensure their own behaviour is above reproach in order to influence that of their students - the next generation of employees and employers.
Sexual harassment is being taken seriously throughout the community as a result of State and Commonwealth legislation and litigation such as the case referred to above. There are a number of key arguments that ensure it will be continued to be taken seriously. There is the moral argument that it is unfair and improper for people to be harassed; there is the health and safety argument that sexual harassment can and does result in injuries, illness and increased time off work; and there is the economic rationalist argument that sexual harassment reduces productivity, not only because the act of harassment wastes time but because it can result in expensive legal action and payouts.
In a climate where sexual harassment has been named, recognised and dealt with through law, no employee needs to accept behaviour that is unwelcome or offensive. It is the employee's right to say 'No', and it is the employer's obligation to ensure the employee is heard.
Val Marsden is Senior Policy Officer, Human Resource Policy and Planning, Education Department of Western Australia
Meredith Lane-Richardson is principal of Kambalda Senior High in the WA Goldfields.
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