30 Sep 2021

Trends in the management of sexual harassment 01: the rise of the employee activist and bystander

By Amanda Lyras, Lauren Cooper

While bystander action and employee activism can be seen as a positive sign of a "safe to speak up" environment, it can raise complexities for those dealing with sexual harassment matters which must be carefully managed.

Scrutiny on sexual harassment in Australian workplace continues to amplify, driven by the rise of the #metoo and #timesup movements, allegations aired publicly by employees in both the public and private sectors, and recent reform to Australian employment and discrimination laws.

As we explore in a recent paper commissioned by the Australian Institute of Company Directors, it is becoming increasingly less acceptable for sexual harassment matters to be dealt with quietly behind closed doors, with a lack of visibility over consequences for perpetrators. Employees are demanding greater transparency and holding organisations to account in meeting their work, health and safety obligations, as well as their ESG commitments and values statements.

This is evident in emerging workplace trends, such as the rise of employee activists and bystanders who demand meaningful action from organisations in response to sexual harassment, as well as a shift towards a greater transparency over sexual harassment risks and incidents in the workplace. Over the next two articles, we will explore these trends and what they mean for employers.

The rise of employee activists and bystander reporting of sexual harassment

The impact and reach of employee activists in the sexual harassment space was seen on the global stage in November 2018, where thousands of staff from Google workplaces worldwide were involved in a series of walkouts in protest of Google's handling of workplace sexual harassment. "Time's up Tech" and "Google Walkout for Real Change" went viral, following reports of the company offering a generous severance package to an executive that was accused of sexual misconduct. Organisers of the walkouts presented Google with a list of demands, including greater transparency of sexual harassment incidents. Google's chief executive responded to say the company would support employees who took part in the protests and that they had raised constructive ideas for how policies and processes could be improved.

Google's experience is playing out in other workplaces, where employees are increasingly emboldened to speak out about sexual harassment and demand action from their employers (which may or may not be warranted, depending on the circumstances).

It has been best practice for some time for organisations to encourage bystanders in the workplace to speak up about sexual harassment, acknowledging it can be difficult for victims of harassment to report such behaviour themselves for a range of reasons (including, commonly, a fear that reporting such behaviour will be a career-limiting move or that they will not be believed without witnesses).

In the workplace, bystanders include people who observe sexual harassment, but can also include a wider range of individuals, such as co-workers or support persons apprised of information relating to workplace sexual harassment, as well as people who receive reports of workplace sexual harassment, (for example, managers, supervisors, human resource employees or harassment contact officers).

Best practice workplace policies and training programs seek to empower bystanders to intervene when they observe or become aware of sexual harassment, either in the moment or after the fact. The aim of this is to instil a sense that each person in an organisation has a responsibility to support a safe workplace – in other words, the standard you walk past is the standard you accept.

In the current environment, employees are becoming more comfortable in acting as bystanders, and indeed as employee activists, in the sexual harassment space. This is translating in demands for organisations to take swift and decisive action against perceived or actual perpetrators of sexual harassment, and key personnel threatening to leave their employment if they consider there has been a failure on the organisation's part to adhere to its legal and social responsibilities towards its workers.

Managing sexual harassment risk and complaints with employees' eyes on you

While bystander action and employee activism can be seen as a positive sign of a "safe to speak up" environment, it can raise complexities for those dealing with sexual harassment matters, including when supporting a confidential investigation process and affording procedural fairness to accused perpetrators. Organisations can very quickly find themselves on the back foot where allegations of sexual harassment become known and workplace gossip spreads faster than an organisation can act. Where employee activism goes public, there is also of course the potential for reputational damage to occur with customers, business partners and even society more broadly.

Challenges can particularly arise where bystanders are unaware that an organisation has commenced the process of responding to sexual harassment, or are otherwise misinformed or misguided as to the organisation's approach. For example, in some instances, it may not be appropriate for a formal investigation to be undertaken into sexual harassment allegations (such as where the facts in the matter are not contested and/or the complainant has sought a more informal means of resolution). In these circumstances, bystanders may perceive that the organisation is not doing enough to respond to the allegations and may seek to intervene in the process or make it untenable as a practical matter for a respondent to continue in the workplace.

The risks posed by sexual harassment to a complainant and other staff must always be kept front of mind, and organisations must take appropriate action without delay to respond to allegations of sexual harassment. However, it must also be borne in mind that an organisation has responsibilities towards all workers in the workplace, including any accused perpetrators. In this context, the organisation can be exposed to legal risk where a respondent is presumed guilty until proven innocent, or is otherwise on the receiving end of inappropriate behaviour on the part of others in the workplace. This could include exposure to claims of unfair dismissal or bullying, or allegations the respondent has suffered an illness or injury as a result of their treatment by others in the workplace. 

Careful workplace management in these circumstances is key, bearing the following guiding principles in mind:

  • It is critical that organisations have a robust sexual harassment policy in place which takes into account recent changes to employment and discrimination laws, supports a victim-centric approach, and outlines that there may be various approaches to appropriately resolving sexual harassment. That policy should be communicated widely within the organisation and all workplace participants should be educated and equipped with training to understand their rights and obligations under that policy. This assists not only in mitigating legal risk, but also setting expectations with staff and bystanders.
  • Organisations must act on sexual harassment complaints promptly and early, in order to avoid an escalation of inappropriate behaviour (which can increase the risk to both the complainant, staff and/or the organisation) or a perceived lack of action (which can give rise to concerns and action on the part of the complainant, bystanders and other staff).
  • There should be a tailored response to complaints of sexual harassment, noting there is not a "one size fits all" approach within a trauma-informed framework. Employers should consider the complainant's desired outcome, the nature and seriousness of the allegations, and the appropriate process to resolve the matter, which may involve a formal investigation, or a more informal means of resolution (such as via mediation or a facilitated discussion).
  • Some allegations may warrant immediate escalation to a formal investigation, even if that is not the preference of the complainant, because of the seriousness of the allegations, the seniority of the person, or any risks to health and safety. Decisive action which takes the complainant's wishes into account, and ensures any action is proportionate to the issues and considering other legal duties of the organisation, will assist greatly in minimising any detriment to individuals involved or increased bystander scrutiny.
  • Where an investigation is to be undertaken, an investigation protocol should be implemented at the outset which outlines the obligations of all investigation participants, including with respect to preserving the confidentiality of the investigation process and prohibiting victimisation of any other investigation participants. All investigation participants should be required to agree to the terms of such a protocol prior to their involvement in the investigation. A failure to comply with the protocol can give rise to a basis to take disciplinary action.
  • Where bystanders are not participants in an investigation but are otherwise aware of the factual matters giving rise to the investigation, or otherwise have insight into the investigation, it may be necessary to extend confidentiality directions to those individuals in order to preserve the integrity of the process. A failure to comply with such confidentiality directions can also give rise to a basis to take disciplinary action.
  • From an employment law perspective, procedural fairness is only legally required to be afforded to a respondent in the course of an investigation where they have access to the unfair dismissal jurisdiction, though it is nonetheless best practice to afford procedural fairness in sexual harassment matters as a general principle. In some cases however, the organisation may need to balance workplace culture and the safety of other employees, over being able to conduct a procedurally fair investigation, particularly where the allegations raised are particularly serious and/or there are immediate or acute risks to the health and safety of the complainant or other staff.
  • Once any investigation is finalised, consider what will be communicated about the matter to workplace participants, including bystanders. This may concern the findings of the investigation where there is a public interest in doing so, a statement agreed by the complainant and respondent, or broader measures the organisation is taking to deal with sexual harassment (such as additional training).
  • Finally, the organisation's broader suite of policies should be reviewed in light of the potential for employee activism in this space. Some pertinent issues include a social media policy that clearly articulates permissible uses of social media by employees and other staff, and where use of social media may result in disciplinary action (for example, where it involves harassment or bullying of staff, or a disclosure of confidential information of the company).

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.