So, you’re not an A-list Hollywood actor, nor a mover and shaker in political circles. You’re just someone – probably a woman – with a job. And while they may not be powerful or important anywhere else, someone – a customer, a colleague, probably a man – is sexually harassing you at work.
Maybe you’re a temping teaching assistant in a school, and the French teacher announces to a class full of teenage boys anyone can get a good look up your skirt – a comment none of them will ever let you forget. Said man then drunkenly tells you at the school Christmas party that he’d like to “rub one out against your leg” (this happened to me).
Or maybe you’re a waitress in a wine bar, facing down a group of customers who think bits of your arse come free with the drinks, and who have not stopped trying to cop a feel of your tits all night (this happened to me and literally everyone I worked with there, and continually).
Maybe you’re the ambitious young lawyer working on mergers and acquisitions who finds herself the subject of a hilarious “joke” at an office function – one that involves being questioned on your sex life with your husband and having your boobs grabbed by the boss, both in front of the whole department (this happened to a friend of mine).
It’s humiliating, it’s reductive, and – inconceivably, to those who have not been in that situation – it’s an experience that provokes its victims, rather than its perpetrators, to feel guilt, anger, remorse and shame. And as gross and upsetting leers, inappropriate comments and touching up can be, it can get worse. So much worse. And become a consistent pattern.
But when you’re in precarious work, or young, marginalised or just completely dependent on the income from your job, often harassment incidents that are illegal in Australia are endured by workers terrified of what will happen to their income if they take action.
The Human Rights Commission has compiled survey data since 2008 that’s demonstrated “sexual harassment is a persistent and pervasive problem in Australian workplaces.” A recent survey by the union United Voice, which represents workers in Australia’s highly casualised hospitality industry, found 89% of respondents had been sexually harassed on the job. Harassment culture has become intrinsic to some workplaces, and normalised to those who have come to believe they have no power to address it.
Strategies for prevention minimise the likelihood of harassment at work – and the best one from the outset remains ensuring that you’re a union member, and that your co-workers are, too. Represented by the union, you’re collectively in a stronger position and thus can negotiate with management or the boss some very clear boundaries for acceptable behaviour – and consequences for unacceptable behaviour. And if there is an incident, rather than having to represent yourself in what is always an unpleasant, stressful situation, the union is there to provide spokespeople and legal support on your – and your co-workers’ – behalf.
Every membership strengthens the resources of unions to challenge broader workplace cultures, too. Hospitality is a “pretty mobile sector”, says Jess Walsh from United Voice Victoria, so the union is organising hospitality workers through the internet to support direct action against harassment.
They’ve launched a website – ratemyboss.org.au – to praise the venues that protect staff as well as to call out the ones who fail them. “This movement is building a 21st century union in hospitality,” says Walsh, whose other outreach projects include a “Respect is the Rule” pledge. It credentials venues to promote themselves as places where staff – and customers – are actively protected from harassment.
But if you’re not in a union and you’ve been harassed, then what?
Be explicit about what is necessary to make you feel safe.
The first piece of advice from workplace lawyer Josh Bornstein – who appeared on the #MeToo episode of Q&A last week – is not to quit your job. If the situation is bad enough to make you want to quit, you are clearly distressed enough to justify taking sick leave; go and see a doctor, and detail to them the effects of the harassment on your mental health.
The second, if you’re not a union member, is to record what has happened to you and make a complaint directly to management – and, yes, you can and should complain even if people from outside the workplace harassed you within it, and, yes, you can and should complain to the “management” equivalent if you are harassed within an organisation where you are an unpaid volunteer. If management doesn’t have a process for dealing with sexual harassment, make developing one part of your demands. Be explicit about what is necessary to make you feel safe.
If your demands are not met, you feel inadequately protected, or if management is the party concerned you can get legal advice and take legal action. You can also go to the Equal Opportunity Commission or Human Rights Commission – with or without a lawyer, but Bornstein recommends hiring a lawyer.
His advice is based on the reality of “a power imbalance and an imbalance in financial resources” in confrontations between individual employees and businesses or corporations. And if you’re at the point of making a complaint to a body like these, Bornstein says, “usually the sexual harassment will have harmed your health. If your mental health is compromised, it’s going to be hard to handle any legal process on your own.”
In a legal case, the priority is to first investigate whether there has been a breach – or multiple breaches – of the law. Then the team establish the impact of the harassment on the victim, and whether it’s made ongoing employment untenable. Lawyers with experience of sexual harassment cases usually set out letters of demand as soon as possible, urging a prompt resolution, given that protracted legal events exacerbate the effects the victim’s distress.
Claims against employers can be made for past economic loss – like paying medical bills, or being forced to use up your leave to stay away from an unsafe situation. You can make a claim for any future economic loss – like if you lose your job or can’t continue working. Claims can also be made for “general damages”, like mental health impacts, as the result of “hurt, distress or humiliation”.
While the good news is that courts have dramatically increased the amounts of damages victims can claim, the bad news is that the legal case itself can cost thousands. Or tens of thousands. Or even more.
Given that in the wake of #MeToo, people are finally waking to the scale of the harassment problem, this societal moment of clarity could – and should – motivate a movement for legal reform. Bornstein recommends “a positive duty on all employers to take reasonable steps to reduce or eliminate sexual harassment”.
He also wants to remove the HRC’s discretion to not deal with sexual harassment complains that are six months old or older. “That makes no sense,” says Bornstein, explaining that the mental health impacts of shame, embarrassment and guilt delay the decision of victims to take action. Removing the shroud of confidentiality that prohibits parties from making public statements about assault cases is one way of incentivising employers to take their responsibilities more seriously, as is removing the cap in New South Wales that limits damages payouts to $100,000.
Other suggestions for reform include mandatory reporting of sexual harassment complaints to an organisation like the Workplace Gender Equality Agency, which monitors the gender pay gap, so figures aren’t compiled just from voluntary surveys. Compiling the numbers on how the women fare against harassment would be a useful resource for assessing strategies and informing policy.
A further reform could be to refer sexual harassment cases to the Fair Work Commission instead of the HRC, with Fair Work empowered to issue injunctions to stop harassment from happening. “Early intervention protects mental health,” says Bornstein, “as was the lesson of the anti-bullying laws introduced into the Fair Work Act a few years ago.”
Reading though the responses to United Voice’s hospo survey – and realising this is just one data set from one sliver of one industry – is to be staggered at the scale of the problem, as well as the demoralising circumstances for victims who are young, inexperienced and very, very vulnerable. The boss who called a young woman into his office and had no pants on. The unwanted groping by customers. Physical threats in the wake of rejected sexual advances.
For women who have endured sexual harassment themselves, there’s a sad realisation that the anonymised incidents and behaviour conform so comprehensively to a pattern. Behaviour this similar is not individual, it is cultural. “There has to be a cost to treating workers badly,” says Walsh. “It’s got to stop.”
Bornstein’s language is conspicuously gendered. “Sexual harassment generally occurs in workplaces where men are in a more powerful position than women,” he says. “So maybe we need to change that.”
- Van Badham is a Guardian Australia columnist