How Can I Resolve a Sexual Harassment Claim in the Workplace?
Sexual harassment is rife within our society. At Resolution123, we find that many of our clients come to us for help to resolve a sexual harassment claim without going through the publicity of a court case. In this blog, we explain what would be classified as sexual harassment and outline how you might be able to resolve the claim internally.
What is Sexual Harassment?
How do you prove sexual harassment in the workplace? The existing law suggests that it is a three-part test in order for you to be able to make out a claim.
First, has there been a sexual advance, request for sexual favours or other conduct that is of a sexual nature?
Secondly, if the behaviour has occurred, it needs to be unwelcome. Colleagues might flirt with each other at work and relationships might start at work. This is not sexual harassment unless the conduct is unwelcome.
If you feel that you are subject to any of this conduct, it’s best to expressly reject the conduct and make it clear that it is not welcome.
The best way that you can demonstrate that it’s unwelcome is to call it out and document the behaviour. What happened and what did you say about it? You do not have to put it in an email to a person. Keep a note for yourself.
Thirdly, the court must determine whether a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct.
Example of Sexual Harassment
A recent court case (Hughes v Hill) provides a good illustration of what is classified sexual harassment. The case involved a female lawyer against a male principal supervising solicitor based in a regional firm. Both of them had travelled to Sydney for work and both of them stayed in the house of Mr Hughes’s brother. Mr Hughes had entered Miss Hill’s bedroom and lay in wait on her mattress dressed only in his underwear and when she arrived, asked if he could stay in her room.
She said he could not stay. He then required her to give him a hug before he would leave the room. The next day, he entered the room again while she was having a shower and waited for her to come out of the shower when she was only wearing a towel and asked again if he could stay in the room. There are also a series of emails to Miss Hill, with one of them explicitly asking her to become his lover.
Mr Hughes claimed in court that the behaviour was not sexual in nature, but romantic and intimate, like the conduct of Mr Darcy from the Jane Austen novel Pride and Prejudice. The so-called “Mr Darcy” defence was rejected, leading to Mr Hill’s appeal being dismissed and the $170,000 payout being upheld.
How Do I Deal with Sexual Harassment in the Workplace?
Firstly, tell the person that the behaviour is inappropriate conduct that you consider it to be sexual harassment and that is not welcome. You’re not interested in the advances and it needs to stop immediately. Ideally, tell that directly to the person or at least keep a record of the conduct. Put it in notes on your phone or a diary entry.
If you can’t speak to the perpetrator directly, speak to somebody else within your organisation. Report the conduct to human resources, a manager, team leader or supervisor if possible. Send your notes to a trusted confidante. Discuss it with someone else as a way to show that the conduct happens. The best case scenario is that reporting the conduct internally can stop the conduct or the situation can be investigated appropriately and confidentially.
The situation may come down to an issue of “he said, she said”. By taking notes straight after the conduct has occurred to demonstrate that it happened, this helps to demonstrate your credibility and provide supportive evidence in a case of sexual harassment.
We get you may not want to rock the boat right now, especially with the uncertainty of the job market and the risk of a complaint affecting your work. It’s a fair concern given the statistics around victimisation following a complaint.
However, to protect yourself and your psychological wellbeing, you should make a report where you can. If you don’t report it, the conduct may continue.
In the first instance, it is best to deal with the situation internally and put your psychological wellbeing first. At Resolution123, we can help you decide whether the conduct is sexual harassment and prepare an internal or external complaint. Get in touch with us via a telephone consult or check your eligibility in our questionnaire.
If you believe that you have a serious case of sexual harassment that requires external intervention, you can read our blog here about your legal options.