Amber Harrison asked her Twitter followers this week to imagine if her story had dropped now, “then in response a gang of rich powerful men, running a massive media company, used a court process and PR teams to attack and silence one woman. How would that have played out in the current climate.”
While Harrison’s battles with Seven boss, Tim Worner and the television network’s lawyers effectively bankrupted her, they have not kept her quiet – despite the legal agreement restraining her from making public statements about the company.
Amber Harrison took on the Seven network. Photo: Josh Robenstone
While the high-profile cases of Harvey Weinstein, Louis C.K, and Don Burke have attracted massive public attention, emboldening many women to share their own harassment experiences as part of the #MeToo campaign, little has changed inside the average Australian office.
The fear of being punished or humiliated – when a power imbalance determines the victim comes off worse – still stops women from complaining about sexual harassment at work.
One in four women experience sexual harassment in the workplace, according to Australian Human Rights Commission data, but a disproportionately low number report it.
Professor Rae Cooper, from the University of Sydney Business School, believes it is not much easier for women to complain about harassment than it was in years gone by.
“People would still see it as dangerous activity to be sticking their hand up and reporting behaviour and making allegations,” she says “But I do think it is a healthy thing that we are talking about this sort of behaviour.”
While many Australian workplaces have policies and rules in place to deal with harassment, the unspoken culture of an organisation can normalise the most inappropriate behaviour.
The allegations against TV star Don Burke have attracted massive public attention.
“It doesn’t matter what kind of policy you’ve got, unless you are actually using it and your system and your culture are reinforcing your stated aims of removing that sort of behaviour, your employees will not feel safe,” says Cooper.
Cooper and her university colleagues have found the edict of “the customer is always right” has persuaded many service-sector employees to put up with behaviour ranging from sexually suggestive jokes to groping.
Professor Rae Cooper believes it is not much easier for women to complain about harassment than it was in years gone by. Photo: Louise Cooper
“You’d be amazed at how many people we spoke to who said it ‘was just part of the job, I’m paid to be friendly’,” Cooper says. “That is, they see responding softly, or not at all, to customer sexual harassment at work as part of their employers’ expectations of them in their job.”
University of Sydney Associate Professor of Law Belinda Smith said some employers and human resource managers may be getting better at trying to address harassment. “I do think there is a better attitude within some workplaces,” she says.
The amount of press and the number of younger and older women with high profiles, low profiles, and from different industries saying “enough is enough” may give more people the fortitude to come forward.
“The Weinstein matter could be a turning point,” says Smith. “I wouldn’t be surprised if this marks a significant shift in people actually thinking they are now prepared to complain.”
How far that message spreads to average workplaces is limited by all the reasons that still stop women from coming forward: the power imbalance; and questions victims often ask themselves – will my word be believed against the perpetrator’s; what will happen to my career; and so on.
“Some of that simply hasn’t changed,” says Smith, a discrimination law expert. “Before making a complaint women still ask: am I going to be laughed at, am I going to be supported or not supported, am I going to be seen as a troublemaker.”
Apart from the fears associated with coming forward, there are the very practical costs and time limits on litigation.
Before 1990, the Australian Human Rights Commission decided complaints of sexual harassment. Today, it only conciliates complaints. To take the matter further a victim needs to go to the federal court, and if they lose, they pay their own and the other side’s legal costs.
“The costs question alone puts people off litigating these matters,” says Smith.
Under federal sex discrimination law, people have six months to make a complaint of sexual harassment, though the Australian Human Rights Commission has a discretion to accept complaints made after this time. People have 12 months to make a complaint under NSW and Victorian laws. But in taking action, an employee often risks losing their job.
Peter Wilson, head of the Australian Human Resources Institute, said most companies have protocols to deal with sexual harassment and staff training programs, many of which are “off the shelf” and limited in their effectiveness.
Gathering employees together in meetings in a protected discussion about the signs of sexual harassment was a more effective strategy. But many companies had failed to engage employees in discussion groups and had used external “box-ticking” programs instead.
In the US, the Equal Opportunity Commission has found that much of the training was ineffective and workplace harassment was widely under-reported.
The New York Times has reported that some men are forming all-male text groups at companies to brainstorm on harassment issues. Many admit the line between friendliness and harassment can be an easy one to cross and are questioning whether they have overstepped the mark.
It quoted Owen Cunningham, a director at San Francisco’s KBM-Hogue design firm, saying he considered himself progressive on gender issues but was thinking more about his past behaviour: “What flirting is OK? Was I ever taking advantage of any meagre power I had? You start to wonder.”
In France, President Emmanuel Macron has launched a “cultural war” against sexism and sexual violence. He has a five-year plan including secondary school education about pornography and is making it easier for rape and assault victims to go to the police.
But many organisations in Australia were starting to lift their game, Wilson says, “because they have to” – community expectations around fair treatment of all co-workers and changes to discrimination laws had lifted standards: “It’s time to step up and stamp out.”
What to do if you are sexually harassed at work
- Sexual harassment is an unwelcome sexual advance, or an unwelcome request for sexual favours in circumstances in which a reasonable person would be offended, humiliated or intimidated.
- You can complain to a supervisor or human resources manager if they are considered safe and trustworthy. Managers should have a process in place for victims of harassment to follow.
- If making an internal complaint is not an option, a complaint can be made to the Human Rights Commission under the Sex Discrimination Act 1984 for a federal matter; the Anti-Discrimination Board of NSW under the Anti Discrimination Act 1977; or the Victorian Equal Opportunity and Human Rights Commission under the Equal Opportunity Act 2010.
- The complaint needs to be made within six months under federal law and 12 months in NSW and Victoria.
- If conciliation before a tribunal fails a person can take the matter to the federal court. But if they lose, they are liable for their own and the other side’s legal costs. The person complaining carries the burden of proof which means they may undergo cross-examination, which can be stressful.
- The only remedy is compensation for harm, including loss of a job or serious psychological harm.
- There is no penalty or punishment given to the person who committed the sexual harassment.
- An employee (not a contractor) can make an unfair dismissal claim or a general protections claim under section 351 of the Fair Work Act 2009. Penalties are available but this law best serves an employee making a complaint against an employer as opposed to another employee.