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Published: 30 December 2010
Author: Carol Andrades

In the wake of the Kristy Fraser-Kirk case – sexual harassment in the workplace

"No level of sexual harassment is tolerable."

It's not everyday that a company like David Jones is so publicly exposed by a sexual harassment case.

The size of the damages sought, the salacious stories about alleged misconduct by the CEO, and the public posturing grabbed everyone's attention.

What's undeniable is that the case put sexual harassment in the workplace back in the public eye and top of the topics at BBQs, in bars, in the office, and even around the dinner table. Which is probably a good thing.

Perhaps more importantly, it has emboldened those people who do feel sexually threatened at work to consider their own circumstances, and what if anything they should be doing to protect themselves.

Sexual harassment is, essentially, offensive conduct of a sexual nature, in the workplace, that offends, humiliates or intimidates a person. It can range from sexual advances and touching to suggestive emails and jokes, and displaying sexually offensive posters or screensavers at work. The law treats all such behaviour seriously – there is no such thing as a 'trivial' episode of sexual harassment because ultimately, the test is what effect it had on the individual who experienced it.

In my line of work at RCT, I see people almost on a weekly basis, mainly women (but not exclusively so), who have been pushed to the brink by sexual harassment at work. The common view is that it's only lower level staff and workers who are affected. But surprisingly, many of those who consult me are executives who are reluctant to come forward. They are good at their job and have always been "copers", people who have got to where they are because they can soak up pressure and deal with stress. It is difficult, however, when the problem affects them on a personal level. Many such people tend to self-censor, thinking: "Maybe I'm being over-sensitive." Still others are reluctant to make a complaint, for fear of losing their job, or being labelled as weak or troublemakers.

It's sad that the very qualities that have made them successful and self-reliant may compromise their chances of asserting their rights.

Sexual harassment is very hard to talk about. Often I find out about a client's ordeal ahead of their partners, because they feel embarrassed to tell their partner about it or worse, they fear being thought to have lead the perpetrator on or flirted. I find that I'm often the first person they've had the courage to open up to, and talk about their plight, having endured, in some case, years of intimidation. Because they have always coped with their own problems, they put off seeing doctors or medical professionals to address their health issues, the stress and the psychological problems. Apart from damaging their health, this can sometimes affect their ability to prove that the sexual harassment was severe enough to warrant medical attention.

For many staff, there are other pressures, which militate against early disclosure, especially imbalances in the power relationship, for example, where the perpetrator may be a supervisor or someone senior. When I seek to intervene on behalf of a client, an employer often protests: "But this person has never come forward, this is the first we've heard about it!" This is not difficult to understand, if the employee fears recrimination. It takes courage to make a complaint.

So what do I do if I feel sexually harassed?

Unfortunately, clients often approach me well after the offending behaviour occurs, by which time their chances of resolving the problem or making a successful claim may be compromised. So the best advice is to act immediately. If you feel able to do so safely, tell the perpetrator to stop and make it clear that the conduct is unwelcome. In any case, report the problem to someone in a position of authority at the workplace.

At the same time, and most importantly, you should start taking notes. Very often there are no witnesses to sexual harassment, so by the time a case gets to trial, it may be your word against the perpetrators. Notes taken at the time an incident occurred, which chronicle the offending behaviour, do carry weight. Similarly, keep any documents, emails, text messages or similar material which may be evidence of the behaviour.

If you are experiencing mental or physical stress, be sure to consult a doctor or another health professional. Your health comes first, and these people are also in a good position to be witnesses to the way the offending behaviour has affected you. In some case, you may be able to make a WorkCover claim as well as taking action under anti-discrimination laws.

What happens next?

Some cases can be settled without going to trial. For example, I may write a letter of demand to the organisation or the company and we arrange a meeting, where I seek appropriate remedies for my client and a commitment that she or he can return to work without fear.

If the case goes to trial, the chances of success will be determined by many factors. But remember, if you do feel sexually harassed, tell someone, see someone, and take notes. Under Victorian law, employers are required to provide a safe workplace, and employees are entitled to a workplace free from sexual harassment.

Carol Andrades is a Consultant in Discrimination, Employment & Industrial at Ryan Carlisle Thomas.