20 Years on: The Challenges Continue - Chapter 4
20 Years on: The Challenges Continue.
Chapter 4: Reporting sexual harassment in employment
4.1 Introduction
Almost one in three targets of sexual harassment in Australian
workplaces in the last five years formally reported it either to employers
or to external agencies, the majority reporting it to their manager, supervisor
or employer. Very few targets reported the sexual harassment to external
agencies.
This chapter examines the results of the national telephone
survey concerning who reports sexual harassment, to whom it is reported
and how reports of harassment are dealt with.
Secondly, external complaints are analysed, including the outcomes
of the complaints of sexual harassment to HREOC analysed in A Bad Business.
Finally the telephone survey provides a number of interesting
findings as to why targets of sexual harassment do not make a formal complaint.
These are informative for employers wishing to improve their grievance
procedures.
4.2 Formal complaints[105]
Almost one third of interviewees (32 per cent or 68 interviewees)
to the telephone survey who experienced sexual harassment in the workplace
in the last five years formally reported it either to their employer or
to an external agency.[106] In contrast,
over three quarters (78 per cent) of complainants of sexual harassment
to HREOC in A Bad Business reported the incident to their employer
prior to lodging a complaint with HREOC. Notably, almost all (99 per cent)
of those complainants expressed dissatisfaction with their employer's
complaint handling process, hence presumably accounting for their decision
to lodge a complaint with HREOC.
Female targets of sexual harassment in the telephone survey were more
likely to formally report the harassment than male targets. While 72 per
cent of the 200 targets of sexual harassment were female and 28 per cent
male, of those 68 targets of sexual harassment who made a formal complaint
from the telephone survey, 84 per cent were female and 16 per cent were
male.
Findings from the telephone survey suggest that there is a
relationship between the likelihood of reporting the sexual harassment
and the severity of the harassment, and between the probability of reporting
the sexual harassment and the power relationship of harasser and target.
The greater the severity of the sexual harassment (as measured in the
telephone survey by rating the sexual harassment experienced on a scale
of one (not at all offended or intimidated) to five (extremely offended
or intimidated) the greater the probability of the sexual harassment being
reported. For example, of those who rated the offensiveness of the sexual
harassment as a four or five, 45 per cent reported the harassment. Of
those who rated the offensiveness of the sexual harassment as one, two
or three, only 19 per cent reported the harassment. A similar finding
was apparent with the intimidation rating. See 2.3.2 for further discussion.
The telephone survey found that where the power differential
in the relationship between the harasser and the target of the sexual
harassment is greatest (that is, the harasser is described as "employer
or boss") the less likely that the target would report the harassment.
The telephone survey also found that where the harasser is described as
"employer or boss" the workplace where the harassment occurred is more
likely to be small (less than 25 employees) than medium (26 to 100 employees)
or large (more than 100 employees).
These findings are to be expected. One would expect that more
serious sexual harassment would be more likely to be reported. It is also
understandable that there is a reluctance to make a complaint of sexual
harassment when the boss is the harasser. Many targets of sexual harassment
in this situation, particularly those employed in small businesses, may
feel that they have no-one to report the harassment to.
4.2.1 Reportees
Targets of sexual harassment were most likely to formally report
the harassment to a manager or supervisor at work, followed by the target's
employer or boss, in both the telephone survey and the complaints data
in A Bad Business. Clearly, employees expect that individuals in
managerial or more senior roles within an organisation will be able to
deal with reports of sexual harassment.
Table 4.1 provides an overview of the data from both the telephone
survey and A Bad Business in relation to the person to whom targets
of sexual harassment make workplace complaints.
Table 4.1
|
Sexual harassment reported to:
|
Telephone Survey (%)[107]
|
A Bad Business Data (%)[108]
|
| Manager/supervisor at work |
53
|
35
|
| Employer/boss |
34
|
28
|
| Human Resources Manager or equivalent |
14
|
14
|
| Equity Officer/Sexual Harassment Contact Officer/ Harassment Contact Officer |
11
|
4
|
| Co-worker |
25
|
3
|
| Alleged harasser |
16
|
8
|
One in four interviewees to the telephone survey who
reported the sexual harassment did so to a co-worker. This suggests that
some targets of sexual harassment seek support and assistance from colleagues
as well as from those in more senior positions within the workplace. It
also may suggest recognition of shared responsibility for dealing with
incidences of sexual harassment in the workplace.
4.2.2 Outcome of complaint
The statistics in the following section must be used cautiously
as the sample sizes of the telephone survey data and the complaints data
in A Bad Business in relation to this aspect are both small.
Table 4.2 provides an overview of the outcomes of reported
sexual harassment from the telephone survey and the outcomes of the workplace
complaints from HREOC's review of sexual harassment complaints in A
Bad Business. Totals of each column in Table 4.2 may add to more than
100 because interviewees may have given more than one response.
Table 4.2
|
Results of formal complaint[109]
|
Telephone Survey (%)[110]
|
Results of workplace complaint
process[111] |
|
|
Harasser was dealt with |
59 | ||
| Harasser was transferred or changed shifts | 7 | Harasser was transferred | 18 |
| Harasser resigned | 3 | Harasser resigned | 12 |
| Harasser dismissed | 17 | Harasser dismissed |
6 |
| Harasser disciplined | 28 | Harasser was demoted | 9 |
| Harasser's salary increment delayed | 3 | ||
| Harasser's probation period extended | 3 | ||
| Harasser received counselling | 15 | ||
| Harasser undertook training | 3 | ||
| Harasser formally warned | 1 | Harasser received a written warning or a final written warning | 18 |
| Harasser spoken to | 3 | Harasser received an oral warning | 12 |
| Negative impact on target Includes: |
16 | ||
| Target was disciplined | 8 | Target transferred[113] | 2 |
| Target transferred or changed shifts | 3 | Target changed shifts[114] | 1 |
| Target resigned | 4 | Target resigned[115] | 45 |
| Target dismissed | 1 | Target dismissed[116] | 19 |
| Harasser apologized | 10 | Information not collected | |
| Employer apologised for allowing the harassment | 7 | Information not collected | |
| Employer made changes to the workplace to prevent sexual harassment in the future |
13 | Information not collected | |
| Employer provided target with a reference | 1 | Information not collected | |
| Nothing was done | 13 | Workplace complaint ignored[117] | 24 |
| Harassment stopped | 3 |
Almost three in five interviewees who formally complained
of sexual harassment stated that the harasser was dealt with. This indicates
that in the majority of cases where the sexual harassment was reported,
the complaint was probably substantiated, and the sexual harassment reported
was likely to be quite serious warranting some form of disciplinary action
of the harasser (with up to 20 per cent removed from their employment).
This finding also suggests that many employers take their responsibility
to respond to formal complaints seriously.
There are significant differences in the outcomes of complaints
for alleged sexual harassers between the telephone survey data and data
from A Bad Business. While these differences are interesting, it
may be difficult to interpret them definitively. The following discussion
cannot be used to draw any firm conclusions.
In A Bad Business, alleged harassers were more than
twice as likely transferred to another department in the same organisation
or work site than harassers in the telephone survey. Also the alleged
harasser was much more likely to have received an oral or a written warning
as a consequence of the complainant's formal workplace complaint than
harassers in the telephone survey.
Alleged harassers in A Bad Business were four times
more likely to resign as a consequence of a workplace complaint than harassers
in the telephone survey but almost three times less likely to be dismissed
than harassers in the telephone survey. This may mean that complainants
of sexual harassment felt less vindicated by a workplace grievance process
which permitted the alleged harasser to resign from employment (with their
reputation intact) instead of being dismissed, with all the implications
of termination at the behest of the employer on the alleged harasser's
chances for future employment.
The most striking difference between the two sets of
data is the proportion of complainants or targets of sexual harassment
who resigned. This is despite methodology differences which prevent direct
comparison between the 45 per cent of complainants who had resigned from
their job at the time of making their external complaint to HREOC in A
Bad Business and the four per cent of the targets of sexual harassment
who resigned as a consequence of making a formal complaint of sexual
harassment in the telephone survey.[118] The fact that a complainant in A Bad Business resigned cannot be
causally linked to the act of making either a workplace report or an external
complaint of the sexual harassment to HREOC because some of the complainants
who had resigned at the time of making an external complaint to HREOC
had not made a workplace complaint or had resigned from their job prior
to lodging a complaint with HREOC. It may be that the complainant resigned
as a consequence of the harassment or that this was only one of a number
of reasons for dissatisfaction with the workplace. Targets of sexual harassment
who resign or are dismissed may be more likely to make external complaints
to agencies such as HREOC. The telephone survey did not record whether
those targets of sexual harassment, who did not formally report the harassment,
resigned or remained in the workplace where the harassment occurred.
Both the complaints data in A Bad Business and the telephone
survey data revealed that a significant minority of complainants and targets
of sexual harassment had their workplace complaints either ignored or
not actioned. Such non-action suggests a high degree of organisational
tolerance of sexual harassment, which may also produce a 'chilling effect'
- if other workers' complaints are ignored, targets of harassment may
be less likely to report incidents of sexual harassment they themselves
have experienced.
One US study suggests a link between reports of sexual
harassment on the job and perceptions of an organisation's tolerance for
sexual harassment of its employees.[119] The study concludes that strategies to reduce or eliminate sexual harassment
in an organisation include:
- establishing and communicating the likelihood of negative outcomes
for harassers of engaging in sexually harassing behaviours; - establishing procedures that minimise the risks of reporting sexual
harassment for targets of harassment, such as retaliation; and - establishing procedures that ensure complainants will be taken seriously. [120]
4.2.3 Time period between sexual harassment and workplace
reporting
Of the 68 interviewees who formally reported the sexual harassment
in the telephone survey, 31 per cent made a workplace complaint either
immediately, or the same or next working day after the sexual harassment
occurred. Forty per cent of the 86 complainants of sexual harassment in
employment reviewed by HREOC in A Bad Business (for which the information
was available) reported the harassment immediately.
Almost three-quarters of complainants in A Bad Business reported the sexual harassment within three months of its initial occurrence,
compared with 81 per cent of the targets of sexual harassment who reported
the harassment from the telephone survey.
It is apparent that where targets of sexual harassment choose
to report the harassment, the majority tend to do so within a fairly short
period of the initial conduct occurring.
4.2.4 Finalisation of formal complaint
Of the 68 interviewees[121] who formally reported the sexual harassment in the telephone survey, the
majority stated that their complaint was finalised either between the
boss and themselves or their employer and themselves.[122] This indicates the usefulness of effectively dealing with workplace complaints.
A significant minority reported finalising the complaint
via an external mechanism. For example, five per cent reported finalising
the complaint with their unions' involvement; five per cent with the involvement
of HREOC or a State/Territory anti-discrimination agency; five per cent
with their legal representative or lawyer's involvement; and four per
cent reported finalising their complaint in court.[123] A further three per cent reported that their complaint was finalised by
the alleged harasser leaving the workplace, and another three per cent
stated that their complaint was resolved between the employer and the
alleged harasser.
Fifteen per cent reported that their complaint had not yet been finalised. [124]
While most complaints of workplace sexual harassment are finalised
internally, a significant minority require the assistance of an external
adviser or body. Due to the small sample size, few conclusions can be
drawn from these data.
Resolution of sexual harassment workplace complaints can be
time-consuming and therefore disruptive in the workplace, not only for
the target, the alleged harasser and other workplace participants, but
also for those whose task it is to investigate and resolve complaints.
The telephone survey did not ask interviewees how long
their complaints took to resolve. Significantly in HREOC's review of sexual
harassment complaints in A Bad Business, the average time taken
from receipt of the complaint by HREOC to finalisation (whether settled
via a conciliation conference chaired by HREOC or privately between the
parties, terminated by HREOC, or withdrawn by the complainant) was 7.6
months. [125]
4.2.5 Satisfaction with process of dealing with sexual harassment
When asked to rate their satisfaction with the process of dealing
with a complaint of sexual harassment on a scale of one (not at all satisfied)
to five (very satisfied) Figure 4.1 shows that almost half (46 per cent)
of the 68 interviewees to the telephone survey who reported the sexual
harassment rated their satisfaction in the four or five range. This indicates
that some employers' grievance procedures are highly effective.
On the other hand, as Figure 4.1 also shows, 38 per cent of interviewees were not satisfied with the process of dealing with the sexual harassment, with one in five interviewees (22 per cent) being not at all satisfied with the process. The average satisfaction rating was 3.1.
Figure 4.1
Q21. Overall on a scale of 1 to 5 where
5 is very satisfied and 1 is not at all satisfied, how would you rate
the total
process of dealing with your sexual harassment complaint? (Asked of those
who mad a formal report or complaint.)
(Sample size = 68; Margin of error + 12%)
4.3 External complaints
The telephone survey confirms the widely held view that
complaints of sexual harassment to anti-discrimination agencies such as
HREOC constitute a tiny proportion of the sexual harassment in employment
that is experienced in the community. Of the 200 interviewees who had
experienced sexual harassment in the workplace within the last five years,
only 3 interviewees (or 1.5 per cent) made a complaint to either HREOC
or a State/Territory anti-discrimination agency. As a proportion of the
68 interviewees who reported the harassment, five per cent made a complaint
to either HREOC or a State or Territory anti-discrimination agency.
Sexual harassment in employment complaints received by
HREOC under the SDA have increased over the period July 1999 to June 2002.[126] In addition, complaints of sexual harassment as a proportion of all discrimination
complaints made under the SDA remain significant, at 27 per cent.[127]
As Table 4.3 shows, complaints to other external agencies,
such as union or employee representatives and the police were also rare.
Table 4.3
| Sexual harassment reported to | Telephone Survey (%)[128] | A Bad Business Complaints Data (%)[129] |
| Union or employee representative | 1.5 | 8 (includes police) |
| Police | 1.5 | |
| HREOC or State or Territory anti-discrimination agency | 1.5 | 100 |
These data indicate that the number of sexual harassment
in employment complaints made to anti-discrimination agencies each year
represents only a small fraction of the number of people who experience
sexual harassment in the workplace.
As such, complaint statistics, while informative on many
levels, cannot and should not be used as some sort of proxy to estimate
the incidence or nature of sexual harassment occurring in the community.
4.4 Reasons for not reporting sexual
harassment
Of the 200 interviewees to the telephone survey who experienced
sexual harassment in the workplace within the last five years, 68 per
cent did not formally report the harassment. Table 4.4 provides an overview
for the reasons given for not formally reporting the sexual harassment.
Interviewees may have given more than one reason for not reporting sexual
harassment, so totals will equal more than 100.
Table 4.4
| Reasons given for not formally reporting sexual harassment experienced |
Telephone Survey Interviewees who did NOT formally report sexual harassment (%)[130] |
| Lack of faith in complaint process |
42
|
|
Includes
|
26 |
| Negative impact on target |
16
|
|
Includes:
|
5 |
| Did not think that harassment was serious enough |
31
|
| Took care of problem myself |
26
|
| Did not think that anything would be done/would not change things |
13
|
| Harasser too senior |
6
|
| Did not want to hurt the person who bothered me |
3
|
| Sexual harassment is accepted in my workplace |
1
|
| Moved to another place of work |
1
|
| Harasser was already being dealt with |
1
|
Many interviewees indicated in their reasons for not making
a complaint of sexual harassment that they did not have faith in the grievance
procedure. This lack of faith included a concern that the procedure itself
was too difficult (26 per cent), or a concern that no positive outcome
would be achieved (13 per cent), or that the procedure would impact negatively
on the target in some way (16 per cent), either directly (getting fired
or damaging the target's reputation) or indirectly (the way his or her
co-workers would treat the target after a complaint was made).
This may mean that a number of employees who have experienced
sexual harassment fail to formally report the harassment because of the
negative perceptions they hold about their workplace grievance procedures.
A greater awareness and understanding of these negative perceptions would
assist employers in refining and marketing their grievance procedures
to better meet employee expectations and effectively resolve complaints
of sexual harassment in the workplace.
Almost a third of interviewees did not think that the sexual
harassment was serious enough to warrant reporting. This suggests that
there is a certain tolerance level for some incidences of workplace sexual
harassment. This tolerance level is not standard and may vary significantly,
depending on such variables as the target's perception of the severity
of the sexual harassment (for example how much harm was caused by the
harassment, or how offended or intimidated the harassment made the target
feel), and the organisational tolerance or workplace culture in which
the sexual harassment occurs. For example, in some workplaces sexual banter
and teasing is prevalent to the extent that it is normalised within the
environment despite the fact that it may constitute unlawful sexual harassment.
More than one in four interviewees stated as a reason for not
reporting the sexual harassment that they "took care of the problem themselves".
This may suggest that some sexual harassment targets may implement a confrontational
strategy for dealing with harassment. While this strategy may be effective
on an interpersonal level as between the individual harasser and the target,
it reinforces the understanding of sexual harassment as conflict between
individuals rather than a form of structural and systemic gender discrimination.
Another possible explanation is that targets of sexual harassment
who "took care of the problem themselves" may have implemented an avoidance
strategy, whereby they deliberately chose to stay out of the path of their
harasser.
Footnotes
105. The incidence
of informal reporting was not collected. Question 7 of the Sexual Harassment
Telephone Survey Questionnaire (see Appendix B) asked interviewees "Did
you formally report or make a complaint about the harassment to anyone?"
It would be expected that the incidence of informal reporting would be higher
than the incidence of formal reporting.
106. Five of the 68 interviewees to the
telephone survey reported the sexual harassment to an external agency (for
example, a union or employee representative, the police, HREOC or a State
or Territory anti-discrimination agency - see Table 4.3). However, because
the targets of sexual harassment in the telephone survey may have reported
the harassment to more than one reportee and due to the small number of
interviewees involved, it is not possible to divide the interviewees into
those who made exclusively workplace complaints or those who made exclusively
external complaints for the purposes of this analysis.
107. Sample size of 64 with margin of
error of plus or minus 12 percentage points at the 95 per cent confidence
level. Target may have reported sexual harassment to more than one reportee
so total percentage will not total 100.
108. Based on sample size of 109. Target
may have reported sexual harassment to more than one reportee so total percentage
will not total 100.
109. Includes outcomes from both workplace
complaints and complaints to external agencies.
110. Sample size of 68 with margin of
error of plus or minus 12 percentage points at the 95 per cent confidence
level.
111. Excludes the outcomes of the HREOC
complaint process.
112. Excludes the outcomes of the HREOC
complaint process.
113. Excludes the outcomes of the HREOC
complaint process.
114. Excludes the outcomes of the HREOC
complaint process.
115. Excludes the outcomes of the HREOC
complaint process.
116. Excludes the outcomes of the HREOC
complaint process.
117. Excludes the outcomes of the HREOC
complaint process.
118. Excludes the outcomes of the HREOC
complaint process.
119. Excludes the outcomes of the HREOC
complaint process.
120. Excludes the outcomes of the HREOC
complaint process.
121. Margin of error of plus or minus
12 per cent at the 95 per cent confidence level.
122. Forty-four per cent finalised the
complaint between the boss and themselves; 27 per cent finalised the complaint
between the employer and themselves.
123. Information as to which court was
not collected. Jurisdiction to deal with sexual harassment claims rests
with the Federal Magistrates Court or the Federal Court for terminated complaints
made to HREOC; State and Territory anti-discrimination tribunals and Administrative
Tribunals, or industrial courts such as the Australian Industrial Relations
Commission and its States' counterparts.
124. Note however, that what was meant
by "finalised" was not defined in the telephone survey.
125. Human Rights and Equal Opportunity
Commission A Bad Business: Review of sexual harassment in employment
complaints 2002 HREOC Sydney 2003, p32. For all complaints to HREOC
in 2001-2002, 88 per cent of matters were finalised within 12 months from
the date of receipt and the average time from receipt to finalisation was
seven months. Human Rights and Equal Opportunity Commission Annual Report
2001-2002 HREOC Sydney 2002, p40.
126. 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.
127. Human Rights and Equal Opportunity
Commission Annual Report 2002-2003 HREOC Sydney 2003, p77.
128. Sample size of 200. Target may have
reported sexual harassment to more than one reportee.
129. Based on sample size of 109. Target
may have reported sexual harassment to more than one reportee.
130. Sample size of 132 with a margin
of error of plus or minus 9 per cent at the 95 per cent confidence level.
Total does not equal 100 per cent as interviewees may have had multiple
reasons for not reporting the sexual harassment experienced.
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Last updated:
24 March 2004.