#MeToo in the Workplace

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#MeToo in the Workplace

By Aaron Goonrey, Emma Lutwyche & Isabel Hewitt*


The "Me Too" movement helped expose the prevalence of sexual harassment in society, particularly in the workplace. While the spotlight has been on women working in Hollywood's film and television industry, hundreds of thousands of women around the world have responded, bringing to light their own sexual harassment experiences. 


The impact this has had on workplaces is profound. The Lean In organization recently conducted research on US workplaces in the wake of #MeToo. Troublingly, Lean In found that since the reports of #MeToo in the media, almost 50% of male managers are uncomfortable participating in common work activities with women. Examples included mentoring, working alone, socialising and travelling for work.[1] 


Though #MeToo encourages and supports both women and men to speak up and call out sexual harassment, inappropriate workplace behavior and sexual assault, the Lean In research suggests that it may be negatively impacting gender equality in the workplace. If male leaders are discouraged from mentoring women, taking women to meetings or travelling to conferences with women, women may miss out on vital opportunities for career development and advancement. 


Although movements such as #MeToo demonstrate that attitudes towards sexual harassment in the workplace are slowly changing, it is an unfortunate reality that retaliation, discrimination and isolation for bringing a complaint are common. 


There is a tension between workplace law and criminal law where a settlement or resolution for sexual harassment in a workplace will generally negate further action, such as the criminal prosecution of the alleged offender. That is, unless the victim decides to pursue the matter in a criminal jurisdiction and has released the offender in a formal settlement.


Due to the fact that sexual harassment settlements in the workplace are often kept confidential, inappropriate behavior is not made public. This exacerbates the problem at hand because there is little accountability for alleged perpetrators. That is, often records of sexual harassment do not become public until they go to court, but sexual harassment cases often settle before they go to court and confidentiality agreements are entered into, meaning little public accountability for sexual misconduct exists.


The confronting reality is that alleging and pursuing a sexual harassment claim can damage a victim's career. However, movements such as #MeToo foster a network of solidarity between victims across many industries and encourage victims to speak up and help one another. Indeed, statistics demonstrate that already since the #MeToo campaign there has been an increase in reports of sexual harassment and a surge of class actions across the world, particularly in the US.[2]


Mentor and sponsor women

In many organisations, the majority of key leaders and decision makers are men. Among the ASX 200 companies in Australia, for example, there are more CEOs and chairs named John than there are women CEOs and chairs. There are also more men called Peter. And more men called David.[3] 


A key way for women to move into leadership positions in the future is for male leaders to mentor them.[4]  Generally, women who are mentored can be more confident in their abilities, take more opportunities to progress and are guided in their careers. 


Another way to support women's careers is through sponsorship. This moves beyond career guidance and involves a business leader taking proactive steps to assist a woman's career progression.  Women who are sponsored may be recommended for more promotion and advancement opportunities, and can be supported for pay increases and career development. 


Having more senior men sponsoring and mentoring women in the workplace is an effective way to ensure that organisations are moving towards gender equality in leadership positions in the future. 


Treat sexual harassment allegations seriously

The crux of #MeToo is that by standing together and identifying as having experienced sexual harassment, female victims should no longer be ignored or dismissed. It raises awareness about the spectrum of harassing behavior and the wide range of women it impacts. 


A survey by the Australian Human Rights Commission (AHRC) in 2012 found that 25% of women in Australia had been sexually harassed at work.  The survey also found that only 20% of people who were sexually harassed reported it.[5]  These numbers suggest that sexual harassment is normalised in many workplaces and that women consistently feel unable to report it. Unsurprisingly, the issues start appearing well before employees even make it into the workforce. AHRC's 2017[6]report into sexual assault and harassment at Australian universities revealed one in five students had been harassed, and 87% of sexual assaults went unreported.


All allegations of sexual harassment in the workplace should be treated seriously, investigated empathetically and dealt with in the framework of gendered power-dynamics. That is, investigations and disciplinary outcomes should take into account the power imbalance that can exist between men and women; in which men can feel entitled to treat women as sexual objects and women feel scared and powerless to stop it. 


#MeToo and the workplace


Despite differences between jurisdictions in the laws surrounding sexual harassment and unlawful discrimination, the increased focus on sexual harassment and abuse of power led to a phenomenon dubbed the "Weinstein Effect", in many countries across the world. Such allegations of sexual harassment have legal ripple effects.


Since #MeToo, the US Equal Employment Opportunity Commission (EEOC) announced that there has been an increase in successful class actions concerning sexual harassment allegations in the US.[7] These include a $340,000 settlement to 15 former female employees against Indi's Fast Food Restaurant in Louisville,[8] a $75,000 settlement to three former female employees against Trans Ocean Seafoods,[9] and a $100,000 settlement against Clougherty Packing.[10]


Since #MeToo in Australia, multiple allegations of sexual misconduct have been made against a high profile politician, internationally renowned actors, and TV personalities. These allegations have led to defamation proceedings against Australian media companies. Undoubtedly, defamation proceedings like these will become more common as the frequency of sexual harassment allegations rise.


Ask women

The best way to support gender equality and help prevent sexual harassment in the workplace is to ask women in the workplace. Open dialogue is the first step to making workplaces fairer, safer and more inclusive for everyone. 


Ultimately, if you have questions or concerns about whether your workplace has a problem with sexual harassment, takes sexual harassment seriously enough or is moving in the right direction for gender equality, ask the women you work with.


The way forward for workplaces


At the very least, #MeToo encourages employers to implement policies and create work environments in which women do not suffer detriment to their careers and are not ostracised in the workplace for calling out sexual harassment. It is also a call for employers to implement zero tolerance policies and tighten workplace harassment training when it comes to sexual misconduct. Implementing tips such as those discussed above are the right step in increasing transparency around sexual harassment and hopefully minimising its occurrence in the workplace and generally. 


In light of the exposed pervasiveness of sexual harassment in the workplace, there seems to be a trend in relation to organisations undertaking workplace training, implementing policies and procedures, developing diversity and inclusion committees, and reviewing merit and recruitment methodologies to promote diversity at a recruitment and promotion level. A better understanding of diversity, what constitutes sexual harassment, higher accountability and a more diverse team of employees generally within workplaces will hopefully lead to a decrease in sexual harassment in the workplace (to the extent that it can).


* Aaron Goonrey is a partner and Emma Lutwyche and Isabel Hewitt are solicitors in the Workplace Relations & Safety Practice Group in the Sydney office of Lander & Rogers.  Mr Goonrey can be contacted at agoonrey@landers.com.au.   


Wednesday, April 25, 2018
Employment / Labor Law