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We've already explored the rise of employee activism and increased bystander reporting of sexual harassment. While a heightened awareness of, and commitment to fight against, sexual harassment are laudable, they can also make the management of the problem more challenging, and require thoughtful processes and handling.
Complementing the greater call from employees is the demand for more transparency from both inside and outside organisations in relation to sexual harassment incidents.
Traditional responses to substantiated findings of sexual harassment have prioritised confidentiality over transparency, in that complainants are typically not informed of outcomes applicable to a perpetrator of sexual harassment and are prohibited from disclosing anything about the matter, even where their allegations have been substantiated.
Valid reasons have underpinned this approach from the perspective of managing legal and reputational risk. However community expectations of the handling of sexual harassment complaints are rapidly shifting and there is emerging consensus that traditional confidentiality requirements are damaging both to complainants and organisational culture. In particular, complainants can feel that they have no voice, no ability to speak to friends and family, and no ability to tell their story to assist their healing, or to help other survivors. Strict confidentiality obligations can also serve to conceal the behaviour of harassers who are able to move between companies and industries and continue to engage in conduct without adverse consequences. Further, where bystanders become involved, a failure to communicate anything about the matter can serve to fuel concerns of a cover-up and contribute to a misapprehension on a bystander's part as to the extent of any action taken by an organisation in response to sexual harassment.
The transparent, victim-centric approach
Against this backdrop, and the considerations we've outlined in response to greater employee activism, a new approach is emerging in relation to the use of confidentiality agreements in sexual harassment matters that is victim-centric. This allows complainants to tell their story in certain contexts, rather than silencing them entirely for the benefit of their perpetrators, requiring a case-by-case consideration of the appropriate bounds of confidentiality in each matter, and may include:
- tailored confidentiality and non-disparagement clauses, providing avenues for a complainant to make a report to law enforcement agency or the Australian Human Rights Commission, or allow them to speak to their wider support network and any medical professionals;
- a clause allowing an organisation to disclose an alleged perpetrator's identity where there is a legitimate public or stakeholder interest; and/or
- a communication to the workplace that is contractually agreed to by the parties.
This new approach, while balancing the needs of all participants, can bolster the organisation's response and play a beneficial role in workplace management, as well as contribute to meaningful cultural change.
We are also more commonly seeing complainants being provided with insight into not only the factual findings of sexual harassment investigations, but the outcomes that are being applied to perpetrators in addition. Indeed, some organisation are taking this one step further and communicating the fact of the findings and the disciplinary action taken within the organisation, either with or without identifying details.
Of course, careful consideration needs to be given to mitigating legal risks to the organisation where it takes a transparent approach. This should not obviate action in this space, but rather there are reasonable precautionary steps an organisation may take to manage and minimise the risk of a successful claim (such as a defamation claim) arising from the disclosure of, and/or remedial action taken in response to, a sexual harassment claim.
Employees are demanding change and organisations that fail to move with the times and be seen to be appropriately dealing with sexual harassment in the workplace run the risk of reputational damage, loss of key personnel, and erosion of culture. Time is indeed up.