#MeToo and #Timesup – What Now for Employers?

Over the past 5 months there has been a renewed discussion both locally and internationally about sexual harassment in the workplace.

In the wake of the Harvey Weinstein allegations surfacing in October 2017, the ‘MeToo’ movement (first established in 2006 to assist survivors of sexual violence)¹ has gained widespread traction after women and men around the world started sharing their experiences of workplace sexual harassment and sexual violence on twitter using the hashtag #MeToo. In January 2018, this movement gained further momentum when women from the US entertainment industry expressed solidarity with workers in the agriculture, hospitality and cleaning industries, who had shared similar stories of abuse and gender inequality in the workplace,  establishing a legal defence fund under the banner ‘Times Up Now (#TIMESUP)’². This movement subsequently gained significant media attention at the 2018 Golden Globe Awards.

In circumstances where one in five people surveyed by the Australian Human Rights Commission reported that they had been sexually harassed within the 5 years immediately prior to the survey³, what do #MeToo and #TIMESUP mean in an Australian workplace context and what should employers be doing?

In Australia, sexual harassment in the workplace has a recent history of being played out in the Courts and in the media. Since 2011 cases like Kristy Fraser-Kirk & Mark McInnes (CEO of David Jones) (2011), Kate Shea & Kevin Holmes (CFO, Energy Australia) (2013), Amber Harrison & Tim Worner (CEO of Seven West Media) (2017) have been played out in the Courts and in the media. In these cases, the media and public domain were being used to both leverage and bolster claims being made and to explain the allegations.

More recently, in the wake of #MeToo, we have seen a significant change of focus, where allegations of inappropriate workplace behaviour and sexual harassment which have not yet been the subject of complaints in the workplace or a completed workplace investigation or legal proceedings, have been played out in the media, apparently blindsiding respondents and employers alike. In a very short period of time for example, there have been allegations of sexual harassment against Robert Doyle, the former Mayor of Melbourne, actors Geoffrey Rush and Craig McLaughlin and TV personality Don Burke.

Employers must consider the risk of this later phenomenon in terms of risk management. Key questions to ask include the following:

• Do existing policies and culture give employees confidence to raise allegations of sexual harassment internally where they can be appropriately investigated and managed and bad behaviour dealt with? Or are employers most likely to hear about a claim when court proceedings are issued or it appears in the press?
• If allegations of sexual harassment are made in the press or on social media, does the employer have an appropriate strategy to deal with the PR nightmare that may follow?

Australian Courts have already recognised society’s changing views about the detrimental impact of sexual harassment on the individuals by ensuring that compensatory damages awarded to victims of sexual discrimination and harassment are made with reference to prevailing community standards.

In Richardson v Oracle Corporation⁴ the Full Federal Court recognised that damages awarded to victims of sexual harassment must not be out of step with the standards and expectations of society. Up until this decision, general damages in sexual harassment cases were within the range of $12,000 to $20,000.  Justice Kenny noted that academic literature had been critical of the courts’ failure to accord weight or significance to the emotional loss and turmoil experienced by a victim of unlawful discrimination and harassment.  Ultimately, the Full Federal Court increased the damages awarded to the Applicant from $18,000 in the earlier decision to $130,000, which included $30,000 as general damages.⁵ In making this decision the Court recognised that:

“community attitudes regarding the impact of sexual harassment [have] changed, in particular that the adverse consequences ... can extend to loss of employment and career; severe psychological illness; and relationship breakdown”.

A number of decisions in state and Federal Courts have followed the Richardson precedent set in relation to damages. In the Victorian decision in Collins v Smith (Human Rights)[2015] VCAT 1992 (23 December 2015) general damages of $180,000 and aggravated damages of $20,000 were awarded as a result of additional aggravating factors, as well as damages for economic loss.

These decisions highlight an increased focus by the Courts in sexual harassment cases on a victim’s loss of enjoyment of life and pain and suffering and an increase in damages, making it even more important for employers to take proactive steps in the workplace to manage risks of sexual harassment occurring.

Are there good reasons for employers to consider a workplace dating policy? In our own backyard the Prime Minister has announced a ‘no-sex’ policy for federal ministers and their staffers. Some Australian universities have given guidance to students and staff about consent and sexual harassment. The Australian National University for example has a compulsory on-line quiz dealing with the issue of consent.⁶  Facebook and Google are reported to have in place policies dealing with office dating, which specifically set out rules about dating.

Let’s be clear - confusion about dating at work, or more accurately between consenting work colleagues is not the issue. Sexual harassment has nothing to do with consent when it is freely given by the parties involved. And whether or not a ‘dating policy’ is in place, there are some very clear standards of behaviour which should be clearly communicated to employees through policies and training:

• Repeated requests for dates which are declined or avoided, can be sexual harassment.
• An imbalance in the position between two employees in the workplace commencing a relationship can result in the less senior employee feeling forced or compelled to participate in a personal relationship.
• A conflict of interest can easily occur where two employees are in a relationship within the same reporting line, and one person is more senior. It’s best to require disclosure so that the conflict can be managed.
• Work related functions (not just the office Christmas party) can easily create an environment for inappropriate and even unlawful conduct. Functions need to be managed appropriately for this reason.

Given the renewed public awareness of the incidence of sexual harassment in the workplace as a result of the #MeToo and #TIMESUP movements, employers must ensure that they take proactive steps to reduce the risk of sexual harassment occurring, including by reviewing existing sexual harassment policies and fostering a work environment that is based on respect and dignity.

Many of our clients are telling us that in the last 3-5 months they have seen a spike in grievances and complaints being made in the workplace in relation to a range of matters, not just sexual harassment.

This is an important moment for employers to ensure that they have appropriate tools in place to test that the workplace culture is not one that tolerates sexual harassment, and that they have a risk management strategy to deal with complaints when they arise.

We recommend the businesses take a fresh look at the following critical issues for managing sexual harassment risks in the age of #MeToo:

Culture:It is critical that from the top down, the workplace culture does not support sexual harassment, bullying or discrimination. Further, the culture should encourage employees to report inappropriate behaviour and foster confidence that if inappropriate behaviour occurs, it will be properly investigated and the person engaging in the conduct appropriately dealt with.

Policies:Policies must not only exist, they must clearly set out the standards of accepted behaviour and employees must have ready access to these polices and know that they will be followed and enforced.

Training:Training about workplace behaviour must occur at all levels – from the Board, to senior management and all employees. The training should be real and engaging, using examples, case studies and questions to test knowledge and understanding. The training should be tailored for, and targeted at, the particular audience. The training should be mandatory, documented and regularly refreshed.

Response: Being prepared to deal with allegations of sexual harassment can be critical for businesses, now more than ever. Managing the initial complaint, including dealing with the victim and the respondent are critical first issues. Where the allegations get into the public domain, other strategic planning issues such as legal professional privilege, advising Boards and stakeholders and media management/public relations can all impact on reputational risks and any future litigation.

Investigations: Conducting workplace investigations can be extremely complex, particularly when allegations might give rise to a complaint to police, or litigation against the employer for its part in the alleged misconduct. An investigation must be impartial, thorough and give confidence to the complainant and respondent that a proper process will be followed, and the outcome will be fact based.

Norton Rose Fulbright lawyers often act in matters involving sexual harassment and discrimination before the courts. Norton Rose Fulbright also has a suite of tools that can support your business in managing its risks in the age of #MeToo, including:

• a workplace training kit built around train-the-trainer so that real knowledge is transferred to your business;
• a risk audit tool that provides your business with a deep and independent assessment of its culture and legal risk issues;
• investigation support including advice on investigation structure, drafting a report, and a health check on findings; and
• Board focused briefing on key risk issues for Board members, including duties to disclose to the ASX and learnings from cases involving senior executives.

Please contact the workplace team at Norton Rose Fulbright to discuss the support we can provide.

Thank you for the assistance of Alessandra Moussa, Associate.