According to the survey – which covered participants from Australia/New Zealand, the United States, Europe and the United Kingdom – a shocking one in seven (14 precent) women in architecture experienced sexual harassment in the twelve months prior to the survey.

“I have had to explain to my boss that it is inappropriate to repeatedly joke about having clients gang rape me.”

So recounted one respondent to a Women in Architecture survey conducted in early 2017.

Sadly, her experience was not an isolated incident.

According to the survey – which covered participants from Australia/New Zealand, the United States, Europe and the United Kingdom – a shocking one in seven (14 precent) women in architecture experienced sexual harassment in the twelve months prior to the survey. This compares with only one in fifty men (2 percent). A common complaint involved women being hit on by clients, consultants and management and feeling pressure to play it down as ‘no big deal’.

Whilst poor conduct in the entertainment industry has received attention, it remains an issue across all sectors of the economy. Whilst the primary effect is felt by workers themselves, employers are also impacted through potential legal consequences, diminished productivity and loss of skilled workers.

Courts are taking notice. In 2014, the Full Court of Federal Court bumped up the amount of damages initially awarded to former Sydney based Oracle consulting manager Rebecca Richardson under the Sex Discrimination Act 1984 for sexual harassment from an initial $18,000 to $130,000. Richardson had been subject to repeated lewd remarks (e.g. ‘I love your legs in that skirt. I’m going to be thinking about them wrapped around me all day long’) and sexual advances from a male colleague whilst working on a bid team to secure a major contract. This impacted her health. Richardson was diagnosed with a chronic adjustment disorder with anxiety and depression and experienced problems in her sexual relationship with her partner. Following the conduct and Oracle’s handling of the situation, Richardson resigned from her position with Oracle and subsequently took a lower paying job with another company.

This raises questions about what constitutes sexual harassment, legal issues faced by employers and what employers can do to prevent harassment from occurring. For answers, Sourceable spoke with Merilyn Speiser, a principal consultant at human resources firm Catalina Consultants; and Louise Rumble, Special Counsel, Workplace Relations and Safety, at corporate and commercial law firm Holding Redlich.

Sexual harassment in employment is outlawed under Section 28 of the Sex Discrimination Act 1984. Under this legislation, sexual harassment includes unwelcome sexual advances, unwelcome requests for sexual favours or otherwise unwelcome conduct where the alleged perpetrators could reasonably have anticipated the possibility of someone getting offended.

This definition raises several points.

First, harassment need not involve physical contact. Whilst certain physical behaviour does fall under the definition (e.g. brushing up against someone, touching, fondling, hugging), unlawful conduct can also extend to non-physical behaviour. According to The Australian Human Rights Commission, this can include comments about a person’s appearance or private life; sexually suggestive behaviour such as leering or staring; sexually suggestive comments or jokes; displaying offensive screen savers, photos, calendars or objects; repeated requests to go out; requests for sex and sexually explicit emails, text messages or posts on social networking sites.

Second, the behaviour must be of a sexual nature. Gestures such as congratulatory or encouraging pats on the back, genuine hugs of a person who feels upset or necessarily working within close physical proximity to others (e.g. when two or more people are looking at the one document or screen) are not of a sexual nature and therefore are not considered to be sexual harassment even though these involve physical contact or close proximity. That said, Speiser urges caution and recommends that consent be obtained before initiating any physical contact.

Finally, behaviour can still constitute harassment where there is no malicious intent on the part of the alleged perpetrator. What is relevant is not the intention of the person committing the behaviour but whether or not  there is a possibility that the conduct might upset others.

According to Rumble, this creates challenges as perceptions about what might be offensive or intimidating vary.  ‘Banter’ in the workplace (e.g. who’s ‘hot’ and who’s not), she says, can be seen as good-natured by some but as ‘sexual in nature’ and offensive by others. Indeed, she says there are cases where banter has resulted in findings of sexual harassment.

Speiser said the idea of malicious intent being a prerequisite for sexual harassment was a common misconception. She says that in the past, this has been too often relied upon as a defence for conduct which has made others feel uncomfortable.

“You will find there are situations where comments are made or behaviours are acted out and the defence is, ‘I didn’t mean to offend anyone’, or ‘I didn’t intend anything bad by that’, or ‘I was only joking – how could you be so sensitive and how could you have taken in that way when I didn’t intend it that way?’” Speiser said.

“That line of defence has carried for a long time. But what we know now is that the issue of sexual harassment is nothing to do with intent. It is how it makes someone feel. If someone feels belittled, intimidated or powerless then that that is what defines the act (from a harassment perspective).

“The line of defence of, ‘I was only joking’, or, ’I didn’t mean it that way’, is no line of defence.”

In terms of an employer’s legal responsibilities Rumble says laws emanate from three areas. First, there is specific legislation at both federal and state level surrounding sexual discrimination. Federally, this is called the Sex Discrimination Act 1984. As mentioned above, this legislation deems harassment in the workplace to be unlawful. This legislation also creates vicarious liability for employers in respect of unlawful conduct (in respect of sex discrimination and sexual harassment) committed by a company’s employees.

Rumble says employers can avoid liability under this legislation, however, where they can demonstrate that they took all reasonable steps to prevent the conduct in question.

Next, occupational health and safety legislation imposes a duty of care on employers to provide a workplace which is free of risk to health and safety. As well as potentially creating unlawful conduct in itself, sexual harassment can traverse a number of areas in which safety (physical and mental/emotional) can be impacted. Sexual harassment can also overlap with anti-bullying legislation.

Finally, employers have a common law duty of care under which workers may be able to sue for loss or damages where they suffered loss because of their employer not having taken reasonable steps to protect their well-being.

In terms of strategies, Speiser and Rumble say action is needed in several areas.

First, it was important to have a clear policy which articulates expectations surrounding workplace conduct and consequences where these are not met. This must be complemented by training in which participants talk through everyday examples of scenarios which may occur. All this must be led from the top. Senior management, Speiser says, must not only observe suitable behaviour themselves but also call out unacceptable behaviour from others. Dealing with the more day-to-day ‘banter’ in this area, she says, will not only set expectations appropriately but also promote confidence and trust that any conduct which occurs at the more serious end of the scale will be dealt with appropriately.

Where alleged unacceptable behaviour does occur, Rumble says it is important to have clear channels through which this can be reported and robust processes to respond to the situation. Complaints, she says need to be taken seriously and acted upon promptly by investigating the allegation and determining any appropriate action. This involves obtaining information from complainants, affording the alleged perpetrator an opportunity to respond, speaking with witnesses and deciding whether, on the balance of probabilities, the allegations are substantiated. Often, this could be done by an external person with experience in this area such as a lawyer or barrister.

One issue about which Speiser cautions is going too far and imposing probation on relations within the workplace. This, she says, is unrealistic and fails to recognise that there will be cases whereby adults who work together will form consensual relationships.

Rumble also cautions against assumptions surrounding the prevalence or otherwise of vexatious claims. By far most of cases she has dealt with, she points out, have involved people with genuine concerns.

Sexual harassment has no place in Australia’s architectural sector.

 

By following simple steps, firms can help stamp this out.