Written by Gary Pinchen
About the Author : Gary Pinchen
I’ve been representing (we are not lawyers) mainly employees in sexual harassment claims since 2004, not just in recent times as a result of the publicity caused by the #metoo movement, and its become a popular new area of endeavor for lawyers. While the current news and social media get our attention with juicy facts and scandals about famous people, I write this hoping to give attention to the other peoples stories. The terrible stories of females who will never be on electronic media and who are not receiving ample massive settlements must be told. Here’s what you may be missing about sexual harassment and assault in your workplace.
- Sexual Harassment Including Physical Assault, is Common In The Workplace and Goes Under Reported
I have represented females who have been verbally accosted, physically assaulted, temporarily imprisoned and raped at work. What did these females experience? Things like:
- Being forced to commit sexual acts prevent being dismissed;
- Being asked for sex, or asked about their sex life at the job interview;
- Being forcibly trapped in a small room by a Co worker/ manager demanding sex before allowing release;
- Being sent pictures of male genitalia;
- Having breasts groped by a drunk boss,
- Having a co-worker bang a hotel door room for 60 minutes demanding to be let in for sex or “see what happens”;
- Being forced to listen to a boss’s graphic accounts of fantasized sex acts or what he got up last night or the weekend
- Demand reveling / naked photos from the female employee
- Forced to work back at night, knowing the boss is going to try sex in some form
I won’t get into to the details of the rape cases that we refer to the police, but they are as shocking and horrifying as you can imagine. Many workplaces are running around making sure everybody got a fluorescent vest and hydrated or whatever and lack of policies / actions to prevent rape, serious assault go unreported. What employer wants to acknowledge a rape may have happened at their premises?
Tales about high-profile men are frankly disappointing, they seem to hold some sort of moral superiority and sense of entitlement they allows them to think they can do what they like. Hence a high rate of sexual harassment in the legal, accounting and finance industries
If anyone had been paying attention, they would know that females being sexually harassed and assaulted at work is not a rare occurrence. The #metoo campaign provides anecdotal support that sexual harassment at work is commonplace. Hard data / facts is more difficult to come by. Sexual harassment and sexual assault at work are both extremely underreported. We at A Whole New Approach receive an extraordinary amount of calls, yet very few actually pursue claims or report it. It seems unless someone famous is involved, we speak little about it in public or at work.
2. No Statistics, What’s going on in Australia
Sadly, there are no recent, credible statistics about sexual incidents in the workplace. However, the most recent data from the Australian Human Rights Commission estimated there were more than 24,000 workplace sexual assaults and incidents a year. Worse still, there is a legal black hole that many rape victims fall into when they try to pursue remedies for rape at work. Many jurisdictions / states round the country limit recovery for rape at work to a workers’ compensation claim for recovery of their rape “injuries, or modest victim of crime claims. This means the victim cannot sue the employer for negligence around the unsafe workplace conditions where the rape occurred nor recover for significant emotional distress damages. Even if a rape victim is allowed to sue the employer directly, often courts will dismiss the claim because the rapist was not acting “within the course and scope of employment.” In other words, the case may be dismissed if the company shows that the rapist was not carrying out company business, or otherwise acting on the employer’s behalf when he raped the employee. Without the ability to hold companies responsible, sexual abuse victims are forced to seek compensation from the perpetrators themselves, most of whom do not have the resources or insurance to compensate the victims fairly for the injuries that they caused
3.Everybody Is Susceptible to Sexual Harassment & Assault Regardless of the type of Company and Position
Sexual harassment transcends occupational and professional categories, age groups, educational backgrounds, racial and ethnic groups, and income levels. For example, one-third of female doctors in hospital settings have reported that they have been sexually harassed at work. My clients have ranged in race, national origin, sexual orientation, education, and age. I have had low wage clients in blue collar jobs, and extremely educated highly compensated females all in the unenviable group of “women harassed at work.”
I do recognize that specific groups of women are particularly vulnerable to sexual harassment. The European Commission has noted that
“divorced and separated women, young women, new entrants to the labor market, women with irregular or precarious employment contracts, women in non-traditional jobs, women with disabilities, lesbians, widows, women working in informal sectors of the economy, migrant workers and women from racial minorities are disproportionately at risk.”https://ec.europa.eu/info/index_en
Reading that list over, it makes me realize that actually few of us in the workplace are not “at risk”.
4.Sexual Harassment and Violence is a Form of Sex Discrimination
It has been more than 38 years since the Australia passed the groundbreaking federal law prohibiting sex discrimination and sexual harassment at work Yet, sex discrimination still rears its ugly head in obvious ways. Some examples:
- A male partner at a law firm tells a female associate that she can’t try cases while pregnant because he claims she will get crazy with hormones;
- A woman is selected for a layoff because “she doesn’t have a family to support” like her male counterparts;
- A man is hired for the same exact role as the woman employee, yet he is paid $30,000 a year more in salary.
- Your probably becoming menopausal soon and drive us crazy
What do fewer job opportunities, lower wages, and demeaning sexist attitudes have to do with sexual harassment? If it’s not apparent, the World Health Organization sums it up nicely, “gender inequalities increase the risk of violence by men against women and inhibit the ability of those affected to seek protection.”
5.Why They “Give In” or Why They Don’t “Just Leave.”
There is always someone who responds to sexual harassment conversations with a line of questioning that goes something like this: “Why do women put up with harassment or even, in some cases, acquiesce to unwelcome sex acts? Why not just say no? Or leave the job?” I will break this down in parts because I really want people to understand what it is like to be a female pursued and trapped by a sexual harasser.
6.Predators are good at what they do.
- They understand when they are in a corporate culture that turns a blind eye and stays quiet when sexual harassment is reported. This is their green light to begin their search for women to harass or assault.
- Studies show that they tend to pick women who are economically or otherwise vulnerable. My unscientific analysis is that they also look for women who have a history of sex or child abuse.
- They are master manipulators and use a variety of tools to confuse, erode confidence, and bully females into acquiescing.
For example, listen to the tape recording of Harvey Weinstein who used these kinds of tactics on one woman. The following are excerpts from his attempts to get her into his hotel room:
Confuse: “I’m sorry…I won’t do it again… I swear on my children.”
Erode Confidence: “You’re embarrassing me… Don’t embarrass me in this hotel…Don’t have a fight with me in the hallway.”
Bully: “You must sit here and have a drink…You must come here now…Go to the bathroom. Listen to me.”
We know how (sickly) effective he was at these tactics on women who seem intelligent, confident and resilient. But, predators are quite good at what they do, some of them having practiced these tactics for years, even decades.
7.Females have few good choices, particularly when the harasser is a powerful superior.
Women are terrified of the consequences to their current and future opportunities if they say no to the advances of the powerful male supervisor.
- Women do not often have the luxury of losing their salary, health care, or savings plan
- Because of the wage and leadership disparity with men, it will likely take a woman a longer time than a man to find a job with equivalent stature, pay and benefits to her current position.
- Women still get fired for making sexual harassment claims.
- Women often blame themselves, feel guilt and shame, and then get caught in a cycle of continued abuse.
8.What Really Happens When Women Report Sexual Harassment or Assault
We have heard from some famous men accused of sexual harassment that the accusers are simply trying to “cash in” on their allegations or get their fifteen minutes of fame. For most females who report sexual harassment, neither of those results are very likely. In fact, I have never met a client who’s super psyched to have been sexually harassed because now she can get her “big payout.” Literally never. Most of what I hear is “I just don’t want another woman to have to experience what I went through.”
Here are the more common experiences of my clients before lawyers get involved:
- The company moves her out of the office or department away from the harasser because it’s uncomfortable for him to see her every day. The move diminishes her career opportunities but not his.
- Potential male mentors shun her out of concern that they will be “misinterpreted” when alone with her.
- She has PTSD and must take a leave of absence from work, further hurting her job security and career advancement.
- HR does a poor investigation and concludes that “there was no evidence that their sexual harassment policy was violated.” Now, she’s viewed as a troublemaker and a liar.
- Her work goes under a microscope, and suddenly the company finds her attitude poor or her work deficient.
- She’s fired.
- She can’t get another job because she has no reference and can’t tell the prospective employer the real reason she was fired
The harasser? Well, if he’s the company’s top salesperson or the founder of the business or a General Manager, chances are he’s not going anywhere. Or, if he does, it will be with a generous six or seven-figure separation agreement in his back pocket.
There are ways to navigate this stressful and challenging path, but again, no female wants to find herself having to take this journey.
9.Employers Don’t Always Walk the Talk
Almost all employers understand that they need to have a written discrimination and sexual harassment polices and training. And, most of them do write one. Then, they neatly tuck it away in a desk drawer and never look at it again. Many employers as part of the induction programs for employees, just say sign here to say your read it. Everybody just signs because they want the job.
We do not discuss issues around sexual harassment and assault at the workplace well or with any meaningful frequency. We are still awkward, giggly inappropriate teenagers about this topic, and it’s time to grow up. Employers need to move past their uncomfortable feelings and engage in frequent communication and training about sexual harassment.
I provide advice and training to Employers on a regular basis, i want this all to stop. And, yes, employees make jokes and roll their eyes at my lecture, but I march on. I talk about how a female harassed at work may feel scared to go to the office or may re-experience trauma from childhood after an assault. I talk about the low morale everyone feels in a company when the investigators and lawyers start to pour in to examine someone’s claims. I give concrete examples of words, images, and physical acts that are not appropriate for the workplace.
I hope that by me stand in front of managers and employees for hours explaining in excruciating detail how and why this is not only wrong but in violation of the law makes a difference. But, I can only do so much without the help of the company. Predators know when the company truly means Zero Tolerance and when it’s just lip service. The companies that buy in and wholeheartedly embrace the idea that the workplace should be free of all harassment and a safe place to work have the best chance of achieving that goal.
10.Consequences Should be Immediate and Reflect the Serious of The Situation. Usually, They’re Not.
First, it typically takes more time than it should for companies to complete their factual inquiry and investigations. It takes more time than it should for the AHRC to engage in a meaningful investigation. Complaints / applications maddeningly creep along at an interminable pace.
When a company finally gets to the point of agreeing to a settlement over sexual harassment or assault claims, they typically agree to make a payment of monetary damages to the female harmed by the harasser’s conduct. Many females also seek nonmonetary remedies like an apology, termination of the harasser, revision of the discrimination and sexual harassment training. This may be surprising but, in my experience, it is exceedingly rare for a company to agree to any of these terms. Not even an apology? Nope. More training so this doesn’t happen again? Nah. In fact, it is standard for a settlement agreement to state emphatically that the payment of money to the female harmed in no way should be construed as the company admitting “any liability whatsoever” for the acts. You can imagine how good this feels to a female who was hoping to effect change by her brave act of coming forward with her complaint.
11.Confidentiality Agreements (Deed of Releases) Are Not Helping Halt the Sexual Harassment
Perhaps some people were indeed surprised when they learned about the claims by multiple women against Roger Ailes, Bill O’Reilly, Bill Cosby, and Harvey Weinstein. Why do I think this? Because I am confident that the females who settled their claims against these men had to sign away their rights to talk about the harassment or assault in exchange for the settlement. I am equally confident that those agreements contained harsh consequences if the female harassed later spilled the beans about her harasser (such as having to pay back the entire settlement and the company’s lawyers fees). Given what we know about the difficulty of staying in the job or finding a comparable job and maintaining a reputation in the field after the complaint, it seems like a reasonable choice for females to accept the monetary benefits in exchange for a confidentiality agreement. What if employers didn’t insist on silence and the harasser was identified and tagged in the industry the same way that women who complain are? We might see fewer harassers attempt harassment again. As it stands now, we know the pattern: he harasses or assaults, she leaves, (maybe money is paid and a confidentiality order is signed), he stays at work to harass or assault again.
- 12..Mandatory Employment Arbitration Agreement are Unfair to Sexual Assault Victims
Australians have a right to justice. However, fewer employees can exercise that right because they sign it away when they go to work for corporate Australia. Many people don’t even realize what they’ve signed until something terrible happens at work, and they need representation. Then they discover that the “onboarding” paperwork that Human Resources sent them included a “binding arbitration” clause for any employment claims, restraint of trade clauses. That means, instead of having your case filed publicly and your evidence heard in open court by a jury of your peers, your case is filed privately, and your claims are decided by a private arbitrator(s). The arbitrator’s decision is final meaning that you have no right to an appeal. Arbitration further stacks the deck in favor of employers because: i) it can be much more expensive than court; ii) arbitration can limit the amount of evidence that you can get from the company that will support your claims; and iii) the arbitrator(s) have to be agreed to by the employer, and they are usually ones that have incentive to be hired frequently by large law firms defending companies.
I have never experienced sexual harassment. I’m very mindful of the biblical adage “until you have walked a mile in someone’s shoes you don’t know what your talking about” Females put up with sexual harassment, i wouldn’t put up. I ask the question Why? The Response can be “It never crossed my mind to tell anyone about these incidents”. “I thought the cost of working as a woman was that occasionally you had to fend off the advances of a sexual harasser”. “It never occurred to me to be angry that my male lawyer colleagues did not have to spend their precious energy dealing with this crap”. “i just want to get ahead”.
Managers and colleagues mostly men, need to learn that the sexual harassment and assault is against the law. Employers need to do a better effort teaching this fact to their employees and taking prompt and serious action against those who violate the law. My strong view is employees who have been sexually harassed or assaulted at work should not have to be bound by a confidentially agreement when they seek the justice to which they are entitled. Laws need to be changed, where a lot of sexual harassment conduct should be re defined as sexual assault and employees, manages, partners, who ever, are subject to criminal charges. This is not with out precedent, when looking at OH&S laws, Employers are now subject to manslaughter charges in the most serious cases Before it was a hefty fine which wealthy employers would simply pay.
Is this approach too harsh?, Fanatical ? If you’re not convinced, do this. Go to your next professional conference (management meetings, training sessions etc – and I mean in any industry- film, car sales, pharmaceuticals, legal, medical, academic, etc.- and ask the attendees in the room to raise their hands if they’ve ever experienced sexual harassment at work. If they’re honest, scores of females hands will go up in your group. Scores and scores. I know this is not practical, i get it, i’m just making a point.
I have represented men sexually harassed by other men or women. I have represented females sexually harassed by other women. However, by a country mile, my claims involve men in power sexually harassing junior females, so I am addressing the practical effects of these scenarios in this article. I wanted this article to be thought provoking, you cannot solve this issue in one blog, one court case, one exposure of an employer, but the journey has started and must continue. Thank you for taking the time to read this article
We at A Whole New Approach P/L are not sexual harassment lawyers, we the nation’s leading workplace advisors, and as stated we have been representing employees in sexual harassment claims since 2004. Any Fair work Commission matters regards respect@work issues, anti sexual harassment orders, adverse action, general protections claims give us a call, its free 1800 333 666. We work in all states, Vic, NSW, Qld, Tas, SA, WA, NT