'Perverse outcomes': How Australia is failing sexual harassment victims

https://www.theguardian.com/world/2017/oct/18/kate-jenkins-on-how-australia-is-failing-sexual-harassment-victims

Version 5 of 8.

In her job as sex discrimination commissioner, Kate Jenkins often hears middle-aged, successful women describing the sexual harassment they endured through their careers.

“Not always, but older women do describe what they tolerated to get where they are,” she says. “I don’t think they intend their message to be ‘put up with it’ [to succeed], but sometimes I think that is what the message is.

“I hope we’re at a turning point where people are saying, ‘this is going on and it can change.’”

Jenkins is responsible for overseeing the Sex Discrimination Act, which outlawed sexual harassment more than 30 years ago. The definition is broad, including leering, suggestive comments or jokes, persistent sexual insults, unwelcome requests for sex, as well as criminal offences such as obscene phone calls or sexual assault.

Harassment is unlawful where a reasonable person could foresee that their actions could offend, humiliate or intimidate. The process is designed to conciliate complaints and resolve them confidentially. Most of the laws in each state are similar.

Jenkins and other experts in this area say the Harvey Weinstein scandal in the United States resonates in Australia because the experiences of women are so similar. They say, too, that we’re at a point where we need to acknowledge that what we have done in the past has been good, but that we’re at an impasse: we have strong laws, but there has been no discernible decrease in sexual harassment, even if there is a heightened awareness of it.

I don’t buy into the discussions where people say, ‘we’ll always have sexual harassment'

The idea that it’s inevitable, that women need to “put up with it”, especially if the harassment is at the lower end of the scale, remains pervasive. “I don’t buy into the discussions where people say, ‘we’ll always have sexual harassment, because men and women, it’s all about sex’,” says Jenkins. “My answer is, ‘I’ve worked, had a long career, it’s managed to unfold without these situations, without every man coming across me needing to mix up his work and his pleasure.’”

Australian women – and some men – have joined the chorus of Americans sharing their experiences under the hashtag #metoo. They are often furious messages, relaying being harassed walking along the street, at work, at university, on trains and buses. They speak of being touched, propositioned for sex and being forced to change jobs.

Academic and journalist Julie Posetti was one, writing on Facebook: “#METOO. The lecherous News Editor who used to leer, make suggestive comments & touch me on the arse while I was (necessarily) bending over a desk compiling bulletins. The Lord Mayor who asked said News Editor ‘Are you fucking her?’ in front of me & assorted others at a media event. The high profile human rights activist who insisted he’d only be interviewed about his work in his hotel room – alone ... Here’s to no longer staying silent.”

Most victims do remain silent, or share what’s happening only with friends or family. Research is limited but the Australian Human Rights Commission has conducted a national prevalence survey since 2003. There has been little change. In the 2012 survey, a quarter of women experienced sexual harassment in the workplace in the previous five years, and one in six men (or 16%) of men had suffered it. Perpetrators are overwhelmingly men, but some women harass, too. Harassment doesn’t just happen at work – women in particular routinely put up with street cat-calling and unwanted advances on public transport – but the majority of formal complaints involve workplaces.

The commission is about to conduct another survey. Formal complaints go up and down each year but have gradually increased. In 2006/07, there were 186 complaints. Last year, there were 247.

“We had a lot of progress in the 60s and 70s in Australia culminating in strong laws in the 80s in sex discrimination,” says Jenkins. “People assume we are doing really well now [but] in practice we haven’t made all of the progress that we expected.

From a bad joke to something more serious

She says many young people have different expectations than older people, they “do expect standards of behaviour that are more fair to men and women”. But they have watched what happens when a person complains, and weigh up whether it’s worth it.

A recent example was cadet reporter Amy Taeuber losing her job with Channel Seven in Adelaide after she complained about a senior producer making repeated sexual remarks to her. (Seven denies that was the reason for her dismissal).

What seems to have changed is awareness, with a raft of reports and mea culpas from institutions. Jenkins, while head of the Victorian Equal Opportunity and Human Rights Commission, oversaw a 2015 report into Victoria police, which found an entrenched culture of sexual harassment.

Last year, the Australian federal police released a report showing that 46% of women employees and 20% of men had been sexually harassed in the workplace in the past five years. It was a “boys club”, said the then sex discrimination commissioner Elizabeth Broderick.

This year, a report on sexual harassment and assault at Australian universities found that 51% of students had been sexually harassed in 2016, whether on or off campus. Some of the harassment was minor – leering or a bad joke – and some was more serious.

The problem, says Jenkins, is that Australia has set up an approach to complaints that has had “perverse outcomes”.

“A Rolls-Royce investigation process is offered as the solution for every issue. There’s not a mechanism to stop the small stuff, and yet the tolerance of the small stuff creates the environment that lets the big stuff happens.

“The mechanism to require a victim who is most probably more junior to raise concerns about the conduct hasn’t worked because it is a very difficult thing to do. Women and men have learned it can jeopardise your career, you might be the one seen as the trouble maker.”

One thing that has changed, says employment lawyer Josh Bornstein, is that if the employer fails to deal with a complaint and conciliation also collapses, courts are treating cases much more seriously.

“When I started practising in the employment and discrimination law area, the awards of damages to women who experienced sexual harassment, if they were able to succeed in their case, were pathetically low.

“But that has changed. The courts have started to recognise only in the last three or four years that sexual harassment can be extremely damaging and they’ve started to award much more significant damages.”

He says a landmark case was the full bench of the federal court’s decision in 2014. A female employee of technology giant Oracle was sexually harassed by a male worker for six months. The original judgment awarded the woman $18,000 in damages, but the full court increased it to $130,000, in part because of changing community understanding of the damage and loss of enjoyment of life harassment could cause.

The cost of complaining

Professor Sara Charlesworth from RMIT researches sexual harassment and has found a trend towards “lawyering up”, even in the early stages of conciliation hearings, and despite legal representation being discouraged in the human rights commission process. Employers are more likely to have legal representation than a complainant.

“We’ve got good laws,” Charlesworth said. “But we’ve legalised our conciliation processes in a way that they were never intended to be legalised. People are likely now to think they need a lawyer and I think the average price for conciliation is about $3,000. What young person’s got that?”

In research yet to be published, Charlesworth has found there were only 41 court cases of sexual harassment that reached a decision in Australia between 2009 and 2015. She argues the focus now should be on cultural change within workplaces, particularly in educating bystanders. While the Weinstein case is the classic example of a powerful man exploiting a younger woman, a lot of harassment occurred between co-workers, and can be less serious, but still damaging.

“Bystanders are very important. Letting people know how to call out bad behaviour, so it’s not always on the person experiencing it. If you see someone deliberately brushing past them, or making lewd comments to them, or making personal remarks, [you say], ‘that’s not really on, that’s not how we treat people in this workplace.’

If you’re able to train up your bystanders, that’s much more powerful.

“If you’re able to train up your bystanders, that’s much more powerful and that addresses the systemic gender discrimination that really underpins most sexual harassment.”

Jenkins agrees the critical change now needs to be cultural. She acknowledges this can be a confusing area in some cases, with men still expected to take the lead in making sexual approaches to women and the possibility of misunderstanding. But she said women rarely complain unless the harassment is serious and persistent, and the culture of a workplace can change the dynamic.

“Workplaces need to change their tolerance levels and that actually has more impact if managers, men in particular, bystanders and peers speak up when something inappropriate happens. That changes the tone and that reduces the prevalence of sexual harassment.”

Bornstein says about 90% of the cases his firm, Maurice Blackburn, takes on settle before court. Employers are not necessarily more enlightened, but are more aware of the damage to their reputation publicity can cause. Last year for instance, Fairfax Media quickly let go the editor in chief of the Age, Mark Forbes, after a complaint by a young woman about his behaviour at a work function.

“We need radical change to turn around the way in which men mistreat women,” says Bornstein. “As I age, I see more and more of these cases, I just realise how entrenched gender discrimination is. We’ve had decades of really good workplace policies, various waves of reform in workplaces and awareness campaigns and complaint campaigns, but the cases still come in strong numbers.

“The answer is multi-faceted and has to be a radical approach to gender equality.” He says one way to start would be to make paternity leave compulsory for men, to make fathers stay home for a time to look after children. It just might shift things a little, he says. He knows it’s a “glib response”, but something has to change.