How would you describe the work landscape today in the wake of the #MeToo movement?
On one hand, #MeToo has enabled individualised pain and anger to find a collective voice - and this has had a powerful impact on many individuals' lives. What was previously the domain of 'private suffering' has been integrated into a strong, community of voice.
On the other hand, I sense that there is now a bit of trepidation in the Australian work landscape. I think many blokes are (quite understandably) shaking their heads and asking themselves what the definition of sexual harassment actually is, for example. In the same way, I think many employers will also be coming to terms with the nature of their liability for sexual harassment that occurs in their workplace.They will be asking lots of practical questions about what they must do to discharge their liability, what sort of policies and training they might need for their specific business and how to tell if they have done enough to discharge their vicarious liability.
So what exactly is sexual harassment?
It is unwanted or unwelcome conduct of a sexual nature that might possibly make a person feel humiliated or embarrassed or offended. It's officially been illegal, on a national level, since the introduction of the Commonwealth Sex Discrimination Act in 1984.
The legislation itself does not prescribe an exhaustive list of all the behaviours that might constitute sexual harassment, but the Australian Human Rights Commission sets out an indicative list that includes a spectrum of conduct. At one end are unwanted comments of a sexual nature - and at the other end of the scale, sexual harassment might take the form of sexual assault.
Sexual harassment is often referred to as a 'gendered harm' because it is most frequently experienced by women and carried out by men. There has, however, recently been a statistical increase in the number of men who have reportedly experienced sexual harassment.
How big is the problem of sexual harassment in Australian workplaces?
According to the Australian Human Rights Commission's fourth National Survey on Sexual Harassment, published in 2018, more than four in five (85%) Australian women and over half (56%) Australian men over the age of 15 have been sexually harassed at some point in their life.
My own national study of women in rural Australia showed that 73% of interviewees reported experiencing sexual harassment in the course of rural employment.
What is the employer's responsibility?
The Sex Discrimination Act 1984 stipulates that every Australian employer must ensure a safe and healthy work environment for all employees. This law has been interpreted in a suite of Australian common law cases that confirm that this legislative duty includes the provision of confidential processes for communicating workplace concerns as they arise, and with suitable efficiency.
Employers must strike a balance between accommodating an employee's right to raise a concern and applying principles of procedural fairness in the course of resolution. The failure of due process can have devastating effects.
So what is the nature of power dynamics at the heart of sexual harassment?
Over the years, sexual harassment has been used as a tool to enforce traditional gender roles in the workplace. This is particularly the case in male-dominated occupations such as mining, military, policing, the legal profession and in agriculture. In these occupations, the presence of women has not always been welcomed by all and, over time, there have been many accounts of sexual harassment being used as a way of wielding power over women, in particular. Reducing a person to a sexual object in a blatant, unwelcome manner is a sure-fire way to humiliate them and increase their sense of vulnerability.
Why do you think more women are speaking publicly about their experience of sexual harassment?
I think the #MeToo movement has affirmed the power of voices speaking to lived experience together, particularly where it's been traumatic (as in the case of sexual harassment).
Of course, it's really important that we balance boldness in speaking to experience with wisdom - for example, there is wisdom in respecting the principles that underpin the Australian legal system, such as procedural fairness. This means that both parties should be entitled to the benefit of a confidential system that affords both parties suitable dignity, clear communication, freedom from victimisation, etc. This goes back to the double-edged sword of confidentiality - it's important in the process of working through a complaint, even though it can have the effect of stifling voice where a non-disclosure deed results from conciliation.
View the short documentary film (based on Skye's book Whispers from the Bush - The Workplace Sexual Harassment of Australian Rural Women).
Skye Saunders is an Associate Professor at UNE's Law School.
