A Bad Business - Part A: Background

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A Bad Business

(Review of sexual harassment in employment complaints 2002)

Part A: Background

1.
Introduction

Sexual harassment has been unlawful
across Australia for almost twenty years with 2004 marking the twentieth
anniversary of the Sex Discrimination Act 1984 (Cth) (Sex Discrimination
Act). [2] Over that period,
community awareness of the existence of sexual harassment, particularly
in the area of employment, has grown considerably.

The Sex Discrimination Act makes it
unlawful for a person to sexually harass another person in employment,
education and other areas of public life. [3]

The proportion of sexual harassment
in employment complaints received by the Human Rights and Equal Opportunity
Commission (HREOC) under the Sex Discrimination Act has been decreasing
over the past eight financial years, while the proportions of complaints
on the grounds of sex and pregnancy discrimination have been increasing. [4] However, for the period July 1999
to June 2002 the actual number of complaints received by HREOC alleging
sexual harassment increased, suggesting that sexual harassment is an
on-going problem despite 20 years of legislation. [5] In addition, complaints of sexual harassment are still significant,
at 27 per cent of the complaints to HREOC under the Sex Discrimination
Act. [6] As such, it is timely to review
these complaints.

1.1 Purpose of the review

The purpose of this review is to investigate
the nature of sexual harassment in employment that is being reported
to HREOC by analysing complaints made to HREOC. The review has analysed
the data according to a number of characteristics such as type of harassment,
nature of employment and employer consequences. The data also provide
evidence of the consequences for employers in failing to effectively
implement preventative strategies in their workplaces.

The analysis is limited to complaints
that have been made to HREOC. Sexual harassment that has been reported
to State and Territory organisations under State and Territory legislation
has not been included. As such, the review represents only a particular
segment of nationally reported sexual harassment.

It is important to note that the outcomes
of the conciliated complaints are agreements between the parties to
the complaint and that HREOC does not determine whether the alleged
harassment actually occurred. Any compensation paid by employers or
individuals may not be taken as an admission that harassment occurred
and conciliation agreements usually include a statement to this effect.
This should be borne in mind when considering the data presented in
this paper.

This paper forms part of a broader
package of work on sexual harassment being undertaken by HREOC. HREOC
is also:

1.2 The research project: design, methodology
and analysis

The research project involved the
collection of quantitative and qualitative information on sexual harassment
complaints through detailed examination of the complaint files for each
relevant complaint. This information was then classified to allow comparison
between complaints and the identification of general trends in the nature
of reported sexual harassment.

Overall 370 complaints made under
the Sex Discrimination Act were finalised by HREOC in 2002. Of these,
162 complaints were identified as involving allegations of sexual harassment.

One complaint may be made on multiple
grounds under the Sex Discrimination Act, and each of these grounds
will relate to an area of public life in which the harassment occurred. [7] In this review, the 162 complaints
were classified as follows:

Given the prevalence of sexual harassment
in employment amongst the complaints, it was decided to focus the review
on this issue. In addition, the smaller number of complaints in other
areas would not have been statistically significant in the results.
Three of the 155 complaint files on sexual harassment in employment
were not available and so have not been included in the review.

This paper, therefore presents the
statistics and qualitative data from a review of 152 complaints alleging
sexual harassment in the area of employment finalised in 2002 by HREOC.

All 152 complaints were included regardless
of the outcome of the complaint or whether a conciliation conference
was held. This includes cases which were terminated by HREOC. [8] Only one of these complaints was terminated on the ground that it lacked
substance. [9]

1.3 Limitations of the research

While the analysis of complaints has
been an effective method for gathering statistical data on the nature
and frequency of reported sexual harassment and gaining insight into
the complaints process, it has been unable to provide insight into the
nature and frequency of the incidence of sexual harassment in the community.
In short, this paper provides information about who reports harassment,
but does not provide a full picture of who is harassed. It is widely
accepted that reported sexual harassment represents only the “tip
of the iceberg” in relation to the incidence of sexual harassment
in the community. It is not possible to extrapolate the full picture
from the complaints data.

The analysis is also limited by the
available data on complaints. Complaints varied in their level of complexity
and in the degree of investigation required. As a result, complaints
files varied in the amount of information that was collected, particularly
in relation to demographics of complainants and individual respondents,
information about the employer, and the effect of the harassment. In
addition, completion of a survey by complainants about their personal
characteristics and background is voluntary and as such was not available
for all complaints. [10] This means that, at times,
the calculated statistics are based on a relatively small number of
complaints and should be used with caution.

1.4 About this paper

The paper is divided into four sections.

Part A includes an
introduction to the paper and an overview of the project design and
limitations.

Part B provides an
overview of HREOC’s complaint handling process and the legal definition
of sexual harassment under the Sex Discrimination Act.

Part C contains the
findings of the research. This includes information on:

Part D considers
the implications of the research findings.

Footnotes

2. Each State
and Territory also has its own legislation concerning sexual harassment.
In some States this legislation has been in place for longer than twenty
years, for example, in Victoria it has existed since 1977: Equal
Opportunity Act 1977 (repealed and replaced by the Equal Opportunity
Act 1995). Such legislation has existed in the Australian Capital
Territory since 1991: Anti-Discrimination Act 1991; in the
Northern Territory since 1992: Anti Discrimination Act 1992;
in Queensland since 1991: Anti Discrimination Act 1991; in
South Australia since 1984: South Australian Equal Opportunity Act
1984; in Tasmania since 1994: Sex Discrimination Act 1994 (repealed and replaced by the Anti Discrimination Act 1998);
and in Western Australia since 1984: Equal Opportunity Act 1984.
In New South Wales, sexual harassment was dealt with as a form of sex
discrimination under the Anti-Discrimination Act 1977 until
1997 when explicit provision for sexual harassment was made in the Act.

3. See Section 2 for the legal definition of sexual
harassment.

4. Human Rights and Equal Opportunity Commission Annual
Report 1995-1996 Commonwealth of Australia Canberra 1996, p90;
Human Rights and Equal Opportunity Commission Annual Report 1996-1997 HREOC Sydney 1997, pp42-43; Human Rights and Equal Opportunity Commission Annual Report 1997-1998 HREOC Sydney 1998, pp47-48; Human Rights
and Equal Opportunity Commission Annual Report 1998-1999 HREOC
Sydney 1999, pp46-47; Human Rights and Equal Opportunity Commission Annual Report 1999-2000 HREOC Sydney 2000, p57; Human Rights
and Equal Opportunity Commission Annual Report 2000-2001 HREOC
Sydney 2001, p73; Human Rights and Equal Opportunity Commission Annual
Report 2001-2002 HREOC Sydney 2002, p73 and Human Rights and Equal
Opportunity Commission Annual Report 2002-2003 HREOC Sydney
2003, p77.

5. Complaints on the ground of sexual harassment increased
from 142 complaints in 1999-2000 to 167 complaints in 2000-2001 to 195
complaints in 2001-2002. Human Rights and Equal Opportunity Commission Annual Report 1999-2000 HREOC Sydney 2000, p57; Human Rights
and Equal Opportunity Commission Annual Report 2000-2001 HREOC
Sydney 2001, p73 and Human Rights and Equal Opportunity Commission Annual
Report 2001-2002 HREOC Sydney 2002, p73. Complaints decreased in
2002-2003 to 172. Human Rights and Equal Opportunity Commission Annual
Report 2002-2003 HREOC Sydney 2003, p77. The next most recent increase
in the number of complaints on the ground of sexual harassment was between
1993-1994 and 1994-1995. Human Rights and Equal Opportunity Commission Annual Report 1993-1994 Commonwealth of Australia Canberra
1994, p80 and Human Rights and Equal Opportunity Commission Annual
Report 1994-1995 Commonwealth of Australia Canberra 1995, p151.
The decrease in the number of complaints on the ground of sexual harassment
between 1994-1995 and 1999-2000, and between 2001-2002 and 2002-2003
corresponds to a decrease in the total number of complaints received
under the Sex Discrimination Act during these periods.

6. Human Rights and Equal Opportunity Commission Annual
Report 2002-2003 HREOC Sydney 2003, p77.

7. See Section 2 on the legal definition of sexual harassment.

8. Complaints that cannot be resolved by conciliation
or are considered inappropriate for conciliation are terminated by the
President of HREOC. Grounds for termination include that there is no
reasonable prospect of settlement, that the behaviour is not unlawful
or that the complaint is lacking in substance. See Section 3 for an
overview of HREOC’s complaint handling process.

9. In comparison, 14 per cent of all complaints under
the Sex Discrimination Act that were finalised in 2001-2002 were terminated
on the grounds of being trivial, vexatious, frivolous, misconceived
or lacking in substance: Human Rights and Equal Opportunity Commission Annual Report 2001-2002 HREOC Sydney 2002, pp73-74.

10. HREOC invites complainants to provide a range of
demographic information including their age and ethnicity for statistical
purposes by returning a voluntary survey form to HREOC. For the 2001-2002
financial year, 68 per cent of complainants returned this form.

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Last
updated: 12 November 2003