The Workplace Context of Sexual Harassment in Australia: Policing the Gender Borders

1. The Workplace Context of Sexual Harassment in Australia: Policing the Gender Borders Australian Labour and Employment Relations Association - ACT 2 November 2011

2. Sexual Harassment in Australia: Context Outcomes & Prevention (2010-2012) Aims: • Better understand contexts & factors that shape indiv & org understandings of SH as workplace issue  • Identify impact of SH on those exposed to it, inc experiences, responses, employment & well-being outcomes • Inform & contribute to improved policy & practice to prevent & respond to SH Data Collection: • Census of state/territory/federal EOCs SH complaint data (July-Dec 2009) • 2009 inquiry/case data Working Women's Services (SA, NT, Qld) & JobWatch • Interviews with grievance handlers/advocates inside/outside workplaces • Interviews with targets of SH • Australian SH case law 2009-2010 • Australian/international media articles 2010

3. What we know about sexual harassment in Australia SH Prevalence Survey (AHRC 2008): • 22% women & 5% men (18-64 yrs) experienced workplace SH over lifetime • 4% of total pop experienced workplace SH in last 5 years • 22% of those who said they DID NOT experience illegal SH reported SH behaviours • Nature of SH • Unwelcome sexually suggestive comments /jokes most common form of SH (56%) • Technology also important - 22% reported sexually explicitly emails/SMS • 31% of those SH’d in the last 5 years experienced physical SH • Types of workplaces • 39% worked for large employers, 30% medium employers & 31% small employers • Gender differences in workplace SH • SH mostly involved male harassers (80%) (male on female SH (62%); male on male SH (18%) female on male SH (15%) • 35% women experienced physical harassment compared to 25% men • Women are likely to feel more offended and intimidated by SH than men

4. Low reporting - high attrition Low reporting of SH (AHRC 2008) • Only 16% of those SH’d in last 5 years reported/made a complaint • Women more likely to report SH - 19% women and 9% men • Of those who did not report SH • 47% because problem ‘not serious enough’ (no difference with type of SH) • 29% because took care of the problem themselves • 21% because had no faith in complaint handling process • 15% feared a negative impact on themselves High attrition • Relatively few formal complaints – less than 600 per year in ALL state, territory and federal EOCs (July-Dec 2009 = 285) • Compared with UK ACAS - in 2010/11 - 6272 sex discrim complaints incSH • Only between 1% to 5% of formal complaints go to a hearing • Few court/tribunal decisions (av 10 substantive cases per year - 2009/10) • Compared with avof 83 per year in UK Employment Tribunals (Rosenthal 2011)

5. Persistence of SH despite: Strong(er) laws: • SH prohibited in state, territory and federal laws • SDA recently amended & strengthened: eg • SH is where a reasonable person would have anticipated the possibility a person would be offended, humiliated or intimidated + contextual factors • Covers SH at a place that is workplace of either or both SH’er and target Wide tribunal/court reading of ‘vicarious liability’: • Covers workplace connected SH inc out of hours/social functions • More than policies & procedures - must take ‘reasonable steps’ to prevent SH Greater emphasis on training/complaint handling: • Employer guides/info from EOCs • State-based employer org training/post complaint reviews of in-house processes & procedures

6. Sexual Harassment defined in s 28A SDA 1)  For the purposes of this Division, a person sexually harasses another person (the person harassed) if: (a)  the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b)  engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. (1A)  For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following: (a)  the sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin, of the person harassed; (b)  the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct; (c)  any disability of the person harassed; (d)  any other relevant circumstance. (2)  In this section conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

7. Why? Narrow understandings of what SH is: • ‘Illegal’ SH vs SH ‘behaviours’ (AHRC 2008) • More likely to ‘see’ SH if intimidating & conducted by a superior (Charlesworth et al 2011) • SH seen by many as a question of bad manners (project IVs) SH still seen as individual issue: • AD laws only activated via individual complaint/context sheered off • Within organisations • In training - even if workplace culture addressed, training aimed at preventing individual ‘bad behaviour’ & to provide redress for indiv target Ambivalent view of SH in media (McDonald et al 2011) • Sensationalize ‘sex’ element rather than details on intimidation & h’ment • Most SH cases seen as potentially vexatious; the target as money grabbing

8. SH as ‘Policing the Gender Borders’ Other studies & emerging findings suggest a collective sex-based form of SH • Those reporting SH likely to report others are SH in workplace (AHRC 2008) • 47% of those SH’d in last 5 years report others SH’d in same workplace • Of these 39% said SH ‘common’, 32% ‘occurred sometimes • Men & women just as likely to report others are SH’d • Co-workers as harassers in male-dominated workplaces • 50% of SH by co-worker (AHRC 2008) • Men more likely to be SH by male co-workers (EOC SH complaints data) • SH as a collective behaviour • military/policing/college student studies • banking – dealing rooms (McDowell 1999) • higher education (Burton 1996); Public service (Lee 2002) • broad range of workplaces (McGliney2007)

9. SH as policing gender borders: key features • Draws on ideas/stereotypes of femininity & masculinity • Often in male-dominated environments eg defence/police where dominant stereotype of masculinity is ‘male warrior’ (Burton 1996; Prokos & Pavadvic 2002; Somavee & Morash 2008) • Also in other environments - norms of ‘boys’ networks’ ‘looking after ones own’ / ‘swinging dick’ masculinity (Burton 1996, McDowell 1999) • Involves groups/units rather than aberrant individuals (Thornton 2002) • Strong collective workplace culture norms: ‘the family’, ‘loyalty’ , homosocial competitive behaviour = ‘cultural misogyny’ (Gailey & Prohaska 2006) • Women seen as unable to meet dominant male standards of performance – making them seem incompetent is central to this form of SH (Thornton 2002) • Men also required to meet dominant norms of masculinity & punished if they do not (McDowell 1999) • It is about humiliation – not sexual desire ‘gone wrong’ – but still SH

10. How policing the gender borders works… Tactics used by groups of men when women enter ‘male preserve’ (Prokos& Padavic 2002): • Stop the invasion: make workplace unpleasant so they will leave • Segregate them: into non masculine aspects of the job • Confirm the masculine nature of the job by showing women unfit for it Org structures/characteristics that (directly/indirectly) alienate women: • Policy & procedures, performance & career management = male-centred • Long hours full-time norm/ ‘job takes precedence over all else’ = • PT’ersare ‘part-committed’ – ‘othering’ of women (Ronalds 2006) • Commitment & reliability of women with children questioned • Lack of employee diversity (sex, ethnicity, age, caring responsibilities etc) • Chain of command/hierarchy can make it difficult to report SH, prevents women developing support networks

11. How do targets react? • Accommodation: • Accept as price for fitting in • Develop thick skin • Adjust behaviour/adapt persona to workplace • Take on masculine role/feminine role/gender neutral role • Confrontation (often restricted by hierarchy/chain of command) • Leave

12. Preventing SH • Much more than training • Recognise gender (in)equality still org problem to be addressed (Bacchi & Eveline 2010) • Need to monitor/question organisational climate/dominant norms • Ensure diversity throughout all levels of the organisation • Goes to how work is done • Hours of work, when they are worked,access to flexible work • Sex segregation of certain jobs • Extent to which culture is employee or job-orientated (Handy 2006) • Goes to org ‘ideal worker’ norms • What work/whose work is recognised/rewarded • Taking an OH&S perspective on SH • The rights of all to ‘quiet enjoyment of the workplace’ • Ongoing proactive monitoring

13. Dealing with it where it occurs • Deal quickly/fairly with individual/group complaint • Look beyond the individual complaint • Provide range of support not only for complainants but co-workers

14. Beyond the organisation… “And we need to have a wider dialogue that’s out in public about it. Because that will also allow people to talk out in families and say, “Oh, actually, I was sexually harassed…” And I think, you know, part of the reaction against the DJ’s case was to show that there was a big space that people don’t talk about. And so there was all this minimising of behaviour. “That’s not that bad and I’ve had worse.” You know, it was a really nasty streak to what was happening. And I think that’s where that systemic approach is really what’s required” (Female lawyer, CLC)