The Weinstein sexual harassment scandal is not unique to the States

Sadly, the allegations about Harvey Weinstein’s long term sexual harassment of women in the movie industry will be of no surprise to many. They will ring true to countless other women of their own experiences in the workplace. In the privileged position I hold as an employment lawyer, there are many cases I have seen where women across the spectrum of industries and levels of seniority have suffered sexual harassment. I have no doubt that many more have suffered in silence.

Sexual harassment includes situations where someone asks another person for sexual contact or activity with a promise of better treatment or a threat of worse treatment. Notably, a threat or promise can be implied, and therefore does not necessarily need to be explicit. What is more common is insidious conduct including the use of sexual language, or physical behaviour which is unwelcome or offensive, and either repeated, or of such a significant nature that it has a detrimental impact on the recipient.

A common thread in cases of sexual harassment, is a workplace culture, where victims don’t have faith that their concerns will be investigated fairly, that the culture will change, or that there will be real consequences for the perpetrator. In most cases, people in the workplace know that “something isn’t right”. However, there is usually a power imbalance, and a real fear that reputations will be tarnished, even if the victim’s allegations are known to be true or are substantiated through an investigation. Victim blaming and shaming seems alive and well.

Employers are responsible for taking practicable steps to ensure that employees have a safe and healthy work environment. While workplace policies should set the tone of expectations in the workplace, that culture will be influenced by the conduct and behaviours that managers, staff, contractors and customers bring to the environment.

Generally, the higher the level of sexual harassment tolerance, the harder it is for an individual to raise concerns. Accordingly, it is critical that incidents of harassment are addressed promptly. Sexual harassment thrives in an environment of wilful blindness. Where issues are not addressed, the culture can become institutionalised and increasingly difficult for the employer to address in an effective manner. To make a real change in culture requires leadership.

Harassment or bullying of any type is unacceptable. Employers should be mindful of their obligations to be active, constructive and responsive in maintaining a productive employment relationship; to ensure the health (including mental health) and safety of workers while they are at work; and in relation to sexual harassment, to investigate any claim, and take all practicable steps to prevent repeat behaviour.

When settling a claim of sexual harassment within the employment context, the employer and employee will ordinarily confirm terms in a full and final Record of Settlement, which includes provisions requiring confidentiality between the parties. Those who settle should not be criticised for finding a way to resolve their concerns. In my experience, for the most part, they simply want to be heard, to know that the perpetrator is made aware that their behaviour is unacceptable and given guidance as to what is expected of them, and that the victim’s association with that person and the distress of the harassment is resolved and at an end.

Setting a positive culture within a workplace, free from harassment, is a collective responsibility. Don’t be a bystander. It’s time to speak up and take the opportunity to make it known that harassment, and in particular sexual harassment, is unacceptable. Business leaders should set an example of standards and a culture that we can be proud of. As a society, we can do better.