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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters


Stopping the slide

Lawyer Steph Dyhrberg tells JACKIE BROWN-HAYSOM why sexual harassment is the hidden health and safety issue that no workplace can afford to ignore.

When clients ask how to prevent sexual harassment in the workplace, employment lawyer Steph Dyhrberg’s response is simple: Do sweat the small stuff.

“You need to call out the casual sexism, the gendered bullying, the patriarchal put-downs, because it’s a slippery slope,” she says. “These sorts of things may not seem like a big deal, but if they’re condoned as acceptable workplace behaviour it leaves the way open for things to escalate, and makes people feel emboldened to go just that bit further.

“But when you call these things out, and empower others to do the same, it becomes ‘not the way we do things round here,’ and makes it far less likely that anyone will try to get away with more serious stuff.”

In workplace health and safety policies sexual harassment is usually bracketed in with bullying, but Dyhrberg says there’s an important difference between them: while the legal definition of bullying sets objective criteria, under which some claims may be dismissed, the decision on whether or not a particular behaviour should be regarded as sexual harassment rests entirely with the person on the receiving end.

“Men will often say I didn’t mean it, it was just banter, and they [the target] laughed, but none of these things actually matter.

“If they later say they were deeply uncomfortable but didn’t feel they could say anything, the fact that they laughed is irrelevant.”

MULTIPLE LAWS APPLY

The reason this is important is that workplace sexual harassment is covered by a lot of law. Inappropriate behaviour can simultaneously breach the HSW, Employment Relations and Human Rights Acts – and employers can be held to account under any of these laws, even if they had no idea the behaviour was going on.

“The Human Rights Act has a provision similar to the HSW Act’s all reasonably practicable steps,” Dyhrberg says. “To avoid a finding of vicarious liability, the employer has to be able to establish they have taken all steps reasonable in the circumstances to prevent sexual harassment occurring.

“So if you’ve never had a conversation about it, or done any training, or made sure people know the process for raising issues, then you haven’t met either this standard, or the HSW Act requirement to prevent harm.”

REPORTING DIFFICULT

Statistical evidence shows sexual harassment can and does happen almost everywhere, but Dyhrberg says many employers find it hard to accept that it may be a problem in their workplace. She acknowledges, however, that it can be difficult to spot, in part because reporting is often a problem in itself.

“If it starts with low-level harassment you may not want to make a fuss, particularly if the harasser is your superior.

“But then, if the conduct goes a bit further, you may feel unable to speak up because people will ask why you didn’t say something earlier.”

When issues are reported the focus often shifts to following due process, and the complainant may end up feeling unsupported and even disbelieved

“Frequently there’s a power imbalance between her and the guy she’s accusing, so he may lawyer-up to defend his career and reputation. And if he’s valuable to the business, the organisation may seek – consciously or subconsciously – to minimise the problem and explain it away.

“Predominantly it’s the victim of the conduct who ends up leaving.”

She warns, however, that organisations may be making a mistake if they try to protect the job of an accused harasser.

“If someone’s engaging in harmful sexual behaviour, it probably won’t be with just one person. They could be damaging your organisation, and your brand.”

Although the majority of sexual harassment cases involve men targeting women, there are male victims too, with gay men at particular risk, usually from straight men. The prevalence of such cases is hard to determine, however, as men seldom report the incidents, she says.

“When a man admits he’s been sexually harassed or assaulted there’s real stigma, so male victims tend to remain invisible and silent.”

GET THE MESSAGE OUT

With sexual harassment known to be both widespread and significantly under-reported, it’s up to employers to take the initiative and search out signs that all may not be well in their workplaces, Dyhrberg says.

“These things can be really hard to track down, but look at survey data, listen to anecdotal evidence, and find the hot spots – work areas where you’ve got increased absenteeism or high job turnover.”

Dealing with unreported sexual harm is a challenge, but an integrated approach can make a difference, with HR, health and safety, and management working together to promote a zero tolerance policy.

“You need to get the message out that it’s ok to talk about it, and that we will take it seriously.

“But the same message has to come from all directions, so you need to get everybody working together in a coordinated way to make it a safe workplace.”

The policy should also include good strategies to deal with those who report harm, and Dyhrberg says having staff trained to deal with such disclosures can make a big difference.

“These things can be hard to hear and hard to respond to. And you desperately don’t want to say the wrong thing, because you’ll not only upset the person but may expose your organisation to legal risk.”

ENABLING SAFE DISCLOSURE

The starting point, she says, should be helping the person feel safe.

“Listen to them and focus on what they need in that moment – what they need to feel safe, and what support they’d like.

“It might take several conversations before they can decide about making a formal complainant, but you need to accept that. But if that’s the first thing you say to them, you’re not focusing on what they need – not having a human response to their human problem.”

In most harassment cases, victims are more interested in being heard and getting the perpetrator to take accountability than in seeking retribution. However there are some cases where it may be appropriate to call in the police. Dyhrberg says while she favours involving the police in serious incidents, this again must be the complainant’s decision.

“People who go through with a criminal prosecution sometimes find it terrible, but for others it can be empowering.

“Even if the police decide a case doesn’t meet the level for further action, just making the complaint can be a positive move because that information will stay on the person’s file, and show up if someone comes forward with another complaint later on.”

SHINING A LIGHT

In the end though, Dyhrberg is convinced that the most important thing in dealing with sexual harassment is bringing the topic out into the open.

“If the problem remains hidden it protects the people doing the harassing and punishes the victims, so train up everyone in your workplace to understand what’s acceptable and know how to say “That’s not ok.”

“The more you talk about this stuff, educate people about what to do and empower them to do it, the less likely it is that harassment will actually happen.”

FOR MORE INFORMATION:

  • • 
    WorkSafe (worksafe.govt.nz): guides and information for workers and business, including draft policy documents.
  • • 
    The Ministry for Women (women.govt.nz): a research report examining international best practice in sexual harassment prevention and response.
  • • 
    The UK Equality and Human Rights Commission (www.equalityhumanrights.com): guidance material on workplace harassment, including some focused on LGBTI workers.
  • • 
    MBIE (mbie.govt.nz): an issues paper and online survey examining how workplaces respond to bullying and harassment at work. MBIE is also seeking submissions on the topic, closing date March 31 2021.
  • • 
    For support contact: Need to Talk? on 1737; Lifeline 0500 543 354; Samaritans 0800 726 666; Safe to Talk 0800 044 334, or the Mental Health Foundation mentalhealth.org.nz

JACKIE BROWN-HAYSOM

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