The Workplace Context of Sexual Harassment in Australia: Policing the Gender Borders

AUSTRALIAN LABOUR AND EMPLOYMENT RELATIONS ASSOCIATION - ACT

2 NOVEMBER 2011

Aims:Better understand contexts & factors that shape indiv & org understandings

of SH as workplace issue Identify impact of SH on those exposed to it, inc experiences, responses,

employment & well-being outcomesInform & contribute to improved policy & practice to prevent & respond to

SH

Data Collection:Census of state/territory/federal EOCs SH complaint data (July-Dec 2009) 2009 inquiry/case data Working Women's Services (SA, NT, Qld) & JobWatchInterviews with grievance handlers/advocates inside/outside workplacesInterviews with targets of SH Australian SH case law 2009-2010Australian/international media articles 2010

Sexual Harassment in Australia: Context Outcomes & Prevention (2010-2012)

What we know about sexual harassment in Australia

SH Prevalence Survey (AHRC 2008):22% women & 5% men (18-64 yrs) experienced workplace SH over lifetime4% of total pop experienced workplace SH in last 5 years

22% of those who said they DID NOT experience illegal SH reported SH behaviours

Nature of SH Unwelcome sexually suggestive comments /jokes most common form of SH

(56%) Technology also important - 22% reported sexually explicit emails/SMS 31% of those SH’d in the last 5 years experienced physical SH

Types of workplaces 39% worked for large employers, 30% medium employers & 31% small

employersGender differences in workplace SH

SH mostly by male harassers (80%) – male/female SH (62%); male/male SH (18%)

35% women experienced physical harassment compared to 25% men Women are likely to feel more offended and intimidated by SH than men

Low reporting - high attrition

Low reporting of SH (AHRC 2008)Only 16% of those SH’d in last 5 years reported/made a complaintWomen more likely to report SH - 19% women and 9% men Of those who did not report SH

47% problem ‘not serious enough’ (no difference with type of SH) 29% ‘took care of the problem myself’ 21% had no faith in complaint handling process 15% feared a negative impact on themselves

High attritionRelatively few formal complaints – less than 600 per year in ALL state,

territory and federal EOCs (July-Dec 2009 = 285) Compared with UK ACAS - in 2010/11 - 6272 sex discrim complaints inc SH

Only between 1% to 5% of formal complaints go to a hearingFew court/tribunal decisions (av 10 substantive cases per year -

2009/10) Compared with av of 83 per year in UK Employment Tribunals (Rosenthal

2011)

Persistence of SH despite:

Strong(er) laws:SH prohibited in state, territory and federal lawsSDA recently amended & strengthened: eg

SH is where a reasonable person would have anticipated the possibility a person would be offended, humiliated or intimidated + contextual factors

Covers SH at a place that is workplace of either or both SH’er and target

Wide tribunal/court reading of ‘vicarious liability’:Covers workplace-connected SH inc out of hours/social functionsMore than policies & procedures - must take ‘reasonable steps’ to

prevent SH

Greater emphasis on training/complaint handling:Employer guides/info from EOCsState-based employer org trainingPost complaint reviews of in-house processes & procedures

Sexual Harassment defined in s 28A SDA

1)  For the purposes of this Division, a person sexually harasses another person (the person harassed) if:     (a)  the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or     (b)  engages in other unwelcome conduct of a sexual nature in relation to the person harassed;in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. (1A)  For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:    (a)  the sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin, of the person harassed;   (b)  the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;   (c)  any disability of the person harassed;   (d)  any other relevant circumstance. (2)  In this section conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Why does SH persist?

Narrow understandings of what SH is:‘Illegal’ SH vs SH ‘behaviours’ (AHRC 2008)More likely to ‘see’ SH if physical, intimidating & conducted by a

superior (Charlesworth et al 2011) SH seen by many as a question of bad manners (project IVs)

SH still seen as individual issue:AD laws only activated via individual complaint/context sheered offWithin organisations In training - even if workplace culture addressed, training aimed at

preventing individual ‘bad behaviour’ & providing redress for indiv target

Ambivalent view of SH in media (McDonald et al 2011)Sensationalize ‘sex’ element rather than details on intimidation & h’ment Most SH cases seen as potentially vexatious; the target as money

grabbing

SH as ‘Policing the Gender Borders’

Other studies & emerging project findings suggest one under-recognised form of SH of SH is collective sex-based SH

Those reporting SH likely to report others are SH in workplace (AHRC 2008)

47% of those SH’d in last 5 years report others SH’d in same workplace Of these 39% said SH ‘common’, 32% ‘occurred sometimes’ Men & women just as likely to report others are SH’d

Chilly climate/sex-based harassment (EOC SH complaint data) 22% inc claims of sex-based harassment/25% inc claims of ‘chilly climate’  

Co-workers as harassers in male-dominated workplaces 50% of SH by co-worker (AHRC 2008) Men more likely to be SH’d by male co-workers (EOC SH complaints data)

SH as a collective behaviour Military/policing/college student studies Banking dealing rooms (McDowell 1999)/higher ed (Burton 1996); civil

service (Lee 2002)

SH as policing gender borders: key features

Draws on ideas/stereotypes of femininity & masculinity Often in male-dominated environments eg defence/police where

dominant stereotype of masculinity is ‘male warrior’ (Burton 1996; Prokos & Pavadvic 2002; Somavee & Morash 2008)

Also in other environments - norms of ‘boys’ networks’ ‘looking after ones own’ / ‘swinging dick’ masculinity (Burton 1996, McDowell 1999)

Involves groups/units rather than aberrant individuals (Thornton 2002)

Strong collective workplace culture/norms: ‘the family’, ‘loyalty’ , homosocial competitive behaviour = ‘cultural misogyny’ (Gailey & Prohaska 2006)

Women seen as unable to meet dominant male standards of performance – making them seem incompetent central to this form of SH (Thornton 2002)

Men also required to meet dominant norms of masculinity & punished if they do not (McDowell 1999; Lee 2001)

It is about humiliation – not sexual desire ‘gone wrong’ – but still SH

How policing the gender borders works…

Tactics used by groups of men when women enter ‘male preserve’ (Prokos & Padavic 2002):Stop the invasion: make workplace unpleasant so they will leave Segregate them: into non masculine aspects of the jobConfirm the masculine nature of the job by showing women unfit for it

Org structures/characteristics that (directly/indirectly) alienate women:Policy & procedures, performance & career management = male-centred Long hours full-time norm/ ‘job takes precedence over all else’

PT’ers are ‘part-committed’ (Ronalds 2006) Commitment & reliability of women with children questioned

Lack of employee diversity (sex, ethnicity, age, caring responsibilities etc) Chain of command/hierarchy can make it difficult to report SH, prevents development of support networks

Views from practitioners

….you can be sexually [harassing] somebody by bullying them without actually sexually harassing them… (male solicitor, private practice)

…I think in the more professional environments, men are clever, they’re articulate, and they can use language very effectively to harass people and so often that is getting the label of bullying, where it really is a form of sex based harassment, which I think is the more insidious, more difficult sorts of thing…. and that’s about language, it’s about interpersonal relationships…. whether women are excluded from certain functions or opportunities, and if that is present it sets a very easy groundwork for what is the obvious sex harassment , which is the touchy things, or the rude photos or the persistent pest stuff, because the environment is there, so once you work on that environment then it limits those opportunities… (female barrister)

Providing the org context for preventing SH

Much more than SH training…Recognise gender (in)equality still org problem to be addressed (Bacchi & Eveline 2010)Monitor/question organisational climate/dominant normsEnsure diversity throughout all levels of the organisation

Goes to how work is doneHours of work, when they are worked, access to flexible workSex segregation of certain jobsExtent to which culture is employee or job-orientated (Handy 2006)

Goes to organisational ‘ideal worker’ normsWhat work/whose work is recognised/rewarded

Taking an OH&S perspective on SHThe rights of all to ‘quiet enjoyment of the workplace’/creating safety cultureOngoing proactive monitoring

Beyond the organisation…

‘…and we need to have a wider dialogue that’s out in public about it.. Because that will also allow people to talk out in families and say, “Oh, actually, I was sexually harassed…” And I think, you know, part of the reaction against the DJ’s case was to show that there was a big space that people don’t talk about. And so there was all this minimising of behaviour. “That’s not that bad and I’ve had worse.” You know, it was a really nasty streak to what was happening. And I think that’s where that systemic approach is really what’s required…’ (female lawyer, CLC)

Sexual Harassment in Australia Project

For further information/input

Contacts:Sara Charlesworth:

Sara.Charlesworth@unisa.edu.au

Paula McDonald: p.mcdonald@qut.edu.au