If Sexual Harassment Is Illegal, Why Is It Still Such An Issue In Our Workplaces?

Sonia Hickey, journalist, questions why sexual harassment continues to be such a big issues in the workplace despite being illegal. 



Sexual harassment in the workplace is a social problem with massive consequences. And it’s costing Australian businesses billions of dollars each year in lost productivity, staff turnover, low engagement and morale. More than that it’s been illegal for 25 years. So, what can be done to eradicate it once and for all?

Despite the fact that it’s been illegal for 25 years, sexual harassment in the workplace is a social problem with massive consequences. It is costing Australian businesses billions of dollars each year in lost productivity, staff turnover, low engagement and morale as well as employee sick days. What can be done to eradicate it once and for all?

According to the research, sexual harassment is rife in Australian workplaces. The result of a survey conducted by the Human Rights Commission last year shows:

  • One in three people reported being sexually harassed in the workplace — this figure has risen by 21% since 2012.
  • 71% reported being sexually harassed at some point in their lives and that women are far more likely to experience sexual harassment than men — 85% versus 56%.
  • Young people are at the greatest risk in the workplace, with the figures suggesting that 45% of people aged between 18 and 29 had been subjected to this kind of treatment.
  • Alarmingly, one in five 15 to 17-year-olds reported experiencing sexual harassment at work.

These were the numbers that prompted the Human Rights Commission to conduct an independent inquiry led by Sex Discrimination Commissioner Kate Jenkins – the results of which are due any day now.

In essence, this investigation aims to answer the question that puzzles us all – if sexual harassment is against the law, then why does it continue to plague our workplaces to such an alarming degree?

The answer is as complex as the problem itself, but there are some significant contributing factors. One of these, is the issue of ‘degree’, meaning quite simply, that whether or not a comment, gesture, interaction is deemed ‘sexual harassment’ often comes down to how much a victim is willing to put up with before the behaviour becomes untenable.

Relationships between men and women can be either clear cut or varying shades of grey, offering up thousands of variations of slightly inappropriate to extremely inappropriate behaviour. And we each have varying levels of tolerance. Certainly, some interactions are more obviously clear-cut than others. And when they’re not, it really depends on how safe victims feel in discussing or reporting the issue as well as how supported they feel in seeking help should they choose to do so.

Another factor of note is that the research by the Human Rights Commission detailed that one in three bystanders who witnessed a colleague being sexually harassed, actually admitted they did nothing, on the basis that they believed taking any affirmative action could make it worse for the victim.

This in turn, whether intended or not, creates cultural acceptance of poor behaviour.

Despite the fact that sexual harassment has been illegal for more than 25 years in Australia, and is dealt with under the Sexual Discrimination Act 1984, with substantial financial penalties, the number of cases prosecuted in the courts represent only a fraction of what the statistics from anonymous data gathering tell us.

This is likely to be because most instances of sexual harassment go unreported – victims tend to leave their jobs rather than report a problem. Many male victims fall into this category – or, conversely, they will ‘put up and shut up’ fearing that any complaint will lack validity, particularly in the eyes of their male colleagues, adversely impacting their professional credibility, reputation and future career.

Often too, when businesses are forced to deal with sexual harassment, they will opt for in-house resolution including a component of financial compensation which may require victims to enter into a non-disclosure agreement, effectively halting any avenue for legal recourse and ensuring the victim’s silence.

The other reason of course, that must not be overlooked is that it is entirely possible that a large number of employers just aren’t adequately equipped to deal with cases of sexual harassment, that is, not certain of their legal footing when dealing with an incident of sexual harassment which not only involves the perpetration of a crime, but undoubtedly amounts to breaches of workplace conduct which is usually outlined in policies and procedures based on, or influenced by the Fair Work Act. We are, after all, a nation of small businesses – the likes of which don’t always have access to in-house legal counsel or large human resource departments which would otherwise contain this kind of expertise.

But in essence, all of this is simply rhetoric that has in one form or another been trotted out before. It’s time to stop talking about the whys, how’s, how oftens and who-dunnits. It’s time for innovative solutions. Because this is a human issue that has a significant and negative impact on our communities. Each and every one of us has the right to feel respected and safe earning as we go about earning a living.

Aside from this, for business, there is a strong imperative to eradicate sexual harassment. Absenteeism and staff turnover, low morale and poor engagement (all of which are by-products of sexual harassment) have a significant financial impact on the bottom line. This, if nothing else, should provide a compelling business case for ending the issue.

And perhaps herein lies the seedlings of a solution. As we have all witnessed over the past decade or so, with the push for businesses to operate in a more sustainable and ecological way, those companies that have embraced change (such as removing child labour and excessively polluting factories from their supply chains) have not just had a positive impact on the environment, they’ve won the hearts and minds of employees and consumers.

There are real positives for brand reputation (and a direct measurable increase in both employee and customer engagement and loyalty, resulting in profit) for those companies which openly acknowledge a problem, take responsibility and prove effective change.

Australia as a nation is showing real global leadership on this issue, but it’s now time for businesses to roll up their sleeves and seek a solution. The National Inquiry Report may well hold the answers we’re all looking for, but real change starts with individual business leaders acknowledging the extent of this problem and working directly with their teams to fix it, bearing in mind that every single incident of sexual harassment is different – which means we should stop looking for a ‘one-size-fits all’ solution.

Sonia Hickey is a freelance writer, magazine journalist and owner of ‘Woman with Words’. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

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