Complaints of sexual harassment have increased in what is being called the “post-Weinstein age”. How do employers deal with a complaint or a #MeToo-type outing?
For many years, film producer Harvey Weinstein, the high-flying co-founder of Miramax and The Weinstein Company (TWC), was the most influential man in Hollywood.
Then, in October 2017, it was revealed that dozens of women had accused Weinstein of sexual assault over a period of three decades.
The film producer’s downfall was swift: he was fired from TWC, expelled from the Academy of Motion Picture Arts and Sciences, and in May 2018, charged with rape and other offences.
As victims all over the world took to social media to share their own stories of abuse using the viral #MeToo hashtag, other prominent men were similarly accused of misconduct, among them actor Kevin Spacey, comedian Louis C.K., journalist Charlie Rose and news anchor Matt Lauer.
New focus on sexual harassment
Suddenly sexual harassment – overlooked for so long – was in the spotlight.
“The issue is now front of mind” for employers today, says Michael Byrnes, a partner at Swaab Attorneys.
Weinstein’s demise triggered a paradigm shift in the way sexual harassment is viewed in the workplace, says Byrnes.
“Previously, some complainants or prospective complainants have thought to themselves, ‘I won’t complain, because the person who engaged in this conduct against me is powerful and brings in a lot of revenue … and no matter what they’ve done, they will be protected’.”
The fall of Weinstein and others like him showed that status no longer afforded protection to those who engaged in abusive behaviour in the workplace.
“People have seen what happened to Weinstein – someone who was incredibly successful, incredibly powerful, yet nevertheless has been brought to account for his conduct.”
The #MeToo movement has empowered victims and encouraged them to report harassment.
“They perceive it’s more likely now that those claims will be taken seriously, and there will be real consequences for a person who is found to have engaged in that conduct irrespective of their power and their status,” says Byrnes.
The first step: a sexual harassment policy
According to the Australian Human Rights Commission, the legal definition of sexual harassment is “An unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated, where a reasonable person would anticipate that reaction in the circumstances.”
Both individuals and organisations can face steep penalties if sexual harassment is found to have occurred in the workplace.
“Employers can be vicariously liable for sexual harassment if they fail to take all reasonable steps to prevent the sexual harassment occurring, and that includes having in place a proper sexual harassment policy,” says Byrnes.
An effective policy clearly defines sexual harassment and states that such conduct is unacceptable and may result in an offender being sanctioned or losing their job.
“It should make it clear that an individual employee and the employer can be liable under applicable legislation for conduct of an employee that constitutes sexual harassment,” says Byrnes.
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“It also should provide a clear mechanism for employees to raise complaints of sexual harassment and then a mechanism for dealing with those complaints effectively.”
A policy on its own is not enough – it must be accompanied by organisation-wide training. Human resources (HR) consultant Ushma Dhanak, of PeopleBuilders, often finds that employees are only vaguely aware of what constitutes sexual harassment.
“Some people genuinely don’t know whether, for example, wolf-whistling or staring or making certain jokes are sexual harassment,” she says.
It’s crucial, she says, “to communicate that there is a policy, especially if you have new people coming into the business. Review the policy regularly to make sure it’s in line with any potential legislative changes. Make sure employees know what the process is for making complaints and reporting.”
Managers need the right skills to deal with sexual harassment claims, particularly in organisations without an HR department.
“Make sure the right training is given to your managers so that if they have an issue that’s reported to them, they know what to do,” says Dhanak.
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When a sexual harassment claim is made
Employers must take allegations of sexual harassment seriously, whether the alleged behaviour is historic or current, says Byrnes. “The foundation for that is the investigative process.”
A “robust, thorough, and ideally independent” investigation should be led by an investigator who has suitable qualifications.
“It needs someone who is going to be impartial, objective and with the right forensic skills – the probity of insight to weigh up competing evidence,” he says.
“It shouldn’t be a crusader, nor should it be someone who’s just going to give the employer the responses the employer might want.”
Both parties should be treated with fairness and sensitivity throughout the investigation process.
“Make sure everyone has had an opportunity to have their say,” advises Dhanak. Observe confidentiality and, if necessary, bring in counsellors to offer extra support.
“Whether or not someone is stood down depends on the nature of the allegations and if it is considered that there is a risk to staff in keeping that person in situ,” says Byrnes.
The employer should be clear that if a person is removed from duties, it is not in any way a pre-judgement, but a measure to address potential risk to other employees.
Byrnes recommends that organisations have an action plan in place to manage any fallout if sexual harassment claims, particularly against a key member of staff, are reported in the media.
“The important thing is to have in place an investigation ... so you can indicate to the relevant media outlet that you’ve taken the complaint seriously,” he says.
“You can’t just be dismissive of these issues.”
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