Introduction
Many organisations in Australia manage the risk of sexual harassment at work through a raft of policies and procedures, training programs, and the funnelling of concerns expressed regarding inappropriate behaviours through complaints procedures. This is largely driven by a compliance approach designed to minimise an employer's risk of being found to be vicariously liable for the conduct of its employees, as well as the risks associated with the treatment of an alleged perpetrator that might be challenged through unfair dismissal proceedings. However, efforts to deter sexual harassment at work through internal processes of this kind have not been particularly effective. The survey data in AustraliaFootnote 1 indicate that the majority of individuals who are subject to sexual harassment at work do not make a formal report or lodge a complaint, and that those who formally report sexual harassment feel at risk of experiencing negative consequences. A number of recent reports on workplace sexual harassment, including the report by the Australian Human Rights Commission (AHRC)Footnote 2 in 2020, have identified the lack of appropriate responses by organisations as a factor that deters individuals from coming forward with their concerns.
Studies in the field of psychology indicate that the responses by an organisation to incidents of alleged sexual harassment have a direct correlation with the effectiveness of communicating the message that the organisation does not tolerate such conduct.Footnote 3 These findings include that ‘employee perceptions of organisational tolerance of sexual harassment and the action taken in response to it are related to the frequency of sexual harassment incidents and to organisational effectiveness in both preventing and addressing sexual harassment where it occurs’.Footnote 4 Such studies indicate that employee perceptions of organisational tolerance are likely to be more influential in shaping attitudes and behaviours than formal policies. Others have looked to what they term an overall ‘organisational justice climate’, which takes a broad account of the perceived fairness of outcome decisions, procedures and interactions.Footnote 5 Some of these studies have drawn a specific link between workplace environments that have fair outcomes, procedures and interactions across all workplace issues with a decreased risk of sexual harassment occurring.Footnote 6
This paper considers the link between the under-reporting of sexual harassment and the way in which an organisation responds to workplace sexual harassment. While the responses of each individual organisation vary, common elements are the policies and procedures that are established for dealing with conduct that may constitute harassment, the workplace practices that are adopted within an organisation where such conduct occurs or a complaint is made, and the type of outcomes that may be arrived at where a complaint is substantiated or a concern is addressed. Throughout the paper, the term ‘organisational processes’ is used in a broad sense to encompass a mix of formal policies and procedures, workplace practices and potential outcomes. Shortcomings in any of these elements may affect the sense of justice conveyed by an organisation's processes and how employees perceive the organisation's responses to workplace sexual harassment.
The overall goal of this paper is to explore how enhancing the justice dimensions of an organisation's processes in relation to workplace sexual harassment could go some way to improving the under-reporting of inappropriate behaviour and to conveying more effectively the message that sexual harassment is not tolerated. It aims to identify the features of organisational processes that are likely to convey a sense of justice and thereby give those who experience workplace sexual harassment more confidence in how their claims will be dealt with, a sense that their concerns will be taken seriously, and provide some assurance that engaging with internal procedures will not lead to negative consequences. The type of features that can influence employees’ perceptions of justice include voice, consistency in treatment, lack of bias, respectful treatment, and adequate explanation of decision-making reasons and outcomes. The opportunity for voice that organisations provide to those who experience sexual harassment at work will be a particular focus of this paper, given the extent of under-reporting of harassment. Consideration will also be given to the structural factors in workplaces that can contribute to the silencing of sexual harassment complaints, and how these impact on behaviours being tolerated in workplaces. A related aim of the paper is to identify how such organisational processes impact on those who are not the direct target of harassment, but are nonetheless affected by being part of that work environment because they observe the alleged harassment or the organisation's response to such behaviour, or both.
Ultimately, this paper advocated for a reframing of organisational processes away from a dependence on individual complaints to include other pathways by which concerns can be raised or observed behaviours addressed that offer alternative voice mechanisms, with an emphasis on problem-solving and early intervention where this is appropriate. The paper also considers different communications strategies, such as approaches to training, the sharing of information about workplace incidents, and leadership on the issue within organisations. The paper seeks to present other perspectives on how an organisation might respond to sexual harassment and considers the use of different strategies that look beyond individual complaints to the broader workplace context. As Anne Numhauser-Henning has argued in the context of sexual harassment ‘the raison d'etre of discrimination regulation is not only to come to terms with individual justice, but – and maybe foremost – to eliminate structural and systemic inequal treatment of particular groups’.Footnote 7 This type of approach requires a careful assessment at the workplace level of what the appropriate response to a particular situation might be, and is premised on the notion that a formalised complaints approach may not be the most effective way of responding to every situation. While there is a strong case for making changes to the substantive law dealing with sexual harassment to make the statutory duty of employers more explicit, the focus of this paper is not on canvassing what changes are needed to the regulatory framework itself.
The paper is structured as follows. Part 1 of the paper sets out the findings of the most recent Australian national survey on sexual harassment in Australian workplaces, focusing on what the data show regarding the reporting of conduct and on the use of internal complaints procedures. Part 2 looks at the common factors that discourage reporting and bystander action. Part 3 examines the dimensions of organisational justice and their application to workplace harassment complaints. Part 4 explores ways to move beyond the standard approach by broadening the avenues that an organisation has at its disposal to respond to the problem and how these fit with the framework of organisational justice. The final Part draws together some concluding comments.
1. What the Australian survey data show
The AHRC has conducted a number of surveys on the prevalence, nature and reporting of sexual harassment in Australian workplaces since the early 2000s. In 2018 it released the findings of its fourth survey of over 10,000 individuals.Footnote 8 These survey data report on a range of indicators, including the prevalence and nature of sexual harassment, the type of workplaces and industries where harassment occurs, and the demographics of perpetrators of sexual harassment. While these are important data, this paper is primarily concerned with the extent to which conduct is reported or the subject of a complaint, and the responses to such action.
The reporting of workplace sexual harassment in Australia is currently low, consistent with trends in other Western countries.Footnote 9 The 2018 national survey report indicates that the majority of individuals who experienced sexual harassment at work did not make a formal report or complaint, with fewer than one in five taking this step. Common reasons that participants in the survey gave for not reporting workplace sexual harassment were: the fact that they thought others would regard reporting as an overreaction to the incident; that it was easier to keep quiet; that they thought that utilising the complaints procedures would be embarrassing or difficult, and the fear of negative consequences.Footnote 10 In addition, some thought the conduct was not serious enough to complain about, due to the fact that such behaviours were commonplace or an accepted part of the workplace environment.Footnote 11
The survey data also show that 43% of those who report sexual harassment experienced negative consequences, including being labelled a troublemaker, being ostracised or victimised by colleagues, or having to resign.Footnote 12 Of those that reported workplace sexual harassment, 19% indicated that there were no consequences for the perpetrator, and where action was taken the most common outcomes were a formal or informal warning or an apology.Footnote 13 The report shows that 45% of those who reported the behaviour said that there was no change at the workplace as a result.Footnote 14 Despite these outcomes, 35% of those who reported the behaviour indicated that they were extremely satisfied with the process used to deal with the complaint, with 13% indicating that they were not satisfied at all.Footnote 15 The report on the survey data indicates that the perpetrators of harassment were most often co-workers employed at a similar level and, in the majority of cases, had engaged in sexual harassment of others in that workplace in a similar manner, which suggests that their behaviour may have gone unchallenged over a period of time. Another finding was that the conduct that was reported was not one-off behaviour, but usually had been ongoing over an extended period of time.Footnote 16
The position of those who witness or hear about the harassment adds another important dimension. The data on the number of individuals who have been exposed to sexual harassment, either as a bystander or the target of the conduct, show that this affects one in two individuals.Footnote 17 However, the survey data show that the majority of people who witness sexual harassment do not attempt to intervene in any way. Where those who witness the conduct did take action, it usually took the form of listening to or talking to the person subject to the harassment, rather than reporting the conduct. Some of this inaction was motivated by a desire not to make the situation worse for the person subject to the harassment.Footnote 18 Where action was taken, one in ten bystanders experienced negative consequences from colleagues.Footnote 19 The propensity of bystanders to take action has decreased since the previous survey was undertaken in 2012.Footnote 20 External government agencies, such as the AHRC or state equality bodies, were only involved in finalising 6% of formal reports or complaints.Footnote 21
2. What deters reporting and bystander action?
A commonly cited reason in the survey data and the academic literature for non-reporting and inaction is a lack of faith in using internal processes.Footnote 22 A work environment is not conducive to the voicing of concerns unless there is trust and confidence in an organisation's processes. In such an environment policies and procedures, and the training designed to reinforce these sources, can take on what an industrial tribunal described as a ‘wallpaper effect’,Footnote 23 where their presence provides only a backdrop to such conduct, without having any real impact.Footnote 24 Moreover, under-reporting and inaction is exacerbated where there is a perception that there may be negative repercussions for reporting,Footnote 25 that senior staff are not supportive, or that it will not lead to meaningful change.Footnote 26 As the case law bears out, those that present genuine complaints are at risk of being seen as a ‘potential ongoing impediment to the smooth functioning of the business’Footnote 27 and ‘identified as a person who it was desirable to terminate because she had confronted [the employer] with her complaints’.Footnote 28 The survey data show that some bystanders see themselves as running the risk of being labelled as part of the problem if they report conduct that they regard as inappropriate.Footnote 29
The manner in which conduct that may constitute harassment is viewed by employees within an organisation is a significant factor. Findings in this area support the view that individuals use their own thresholds to judge whether conduct is worth reporting, and that these standards often exceed the legal definition of what constitutes sexual harassment or what behaviours come within the terms of an organisation's policies and procedures.Footnote 30 Hence, for an individual to report the behaviour, regardless of what legal standard applies, a ‘severity threshold must be reached to motivate voice’.Footnote 31 In such circumstances, conduct is unlikely to be reported unless it exceeds what is generally tolerated within that organisation. Channelling all complaints through a formal procedure can also promote an adversarial approach that complainants may perceive as potentially damaging to their work relationships and therefore as something to be avoided, except as a last resort.
Another contributing factor is that workplace harassment is often framed in the wording of organisational policies and procedures, and reinforced through training programs, as involving the aberrant conduct of an individual(s) directed towards a particular target. In this way the impugned behaviours become ‘interpersonal difficulties, administrative problems, or psychological pathologies’Footnote 32 and involve a search for the one ‘bad actor’.Footnote 33 This casts a complaint of harassing conduct as being capable of specific delineation and as attributable to identifiable individuals.Footnote 34 In this construct, a complaint or grievance is something to be channelled through a designated procedure and resolved between a small group of individuals directly implicated in the conduct, rather than in need of a wider response. In addition, a common feature of organisational processes is to require that any allegations regarding workplace harassment, the manner in which the allegations were dealt with, and any outcome remain confidential.
A by-product of this individualisation of workplace harassment is that it moves the focus away from an employer's responsibility for the prevailing workplace environment and from the harassment being seen as a product of systemic practices and prevailing gender norms within the employer organisation.Footnote 35 It also reinforces a reactive model that detracts from the longstanding recognition of the positive obligation of an employer to provide a harassment-free work environment.Footnote 36 In the US context, this individualisation has been described as a process of ‘discrimination laundering’Footnote 37 where the conduct is seen as that of ‘rogue employees’ who carry it out ‘without the influence and against the interest of the organisation for which they work’. In this construct, employers are seen as simply providing ‘the venue, the neutral physical architecture for discrimination, but nothing more’.Footnote 38 The liability of Australian employers is not simply founded on their vicarious liability for acts of miscreant employees. Primary liability on the part of an employer can also arise as a consequence of the employer's failure to afford conditions of employment that are free from harassment and discrimination.Footnote 39
Another factor that contributes to under-reporting is that unless a complainant has compelling evidence to support their version of the events, they run the risk that the complaints procedure will lead to a finding that there is not sufficient proof to support the complaint. Standard organisational processes usually take the form of seeking to determine whether there is evidence that a particular event or conduct engaged in by the alleged perpetrator(s) affecting an identified complainant is sufficiently well established to amount to a contravention by the named individual(s). This type of approach is very much focused on disaggregated and discrete events or conduct rather than looking at the broader work environment.Footnote 40 Common representations of allegations of sexual harassment in the media also reinforce this sense that it is one person's word against another.Footnote 41 As far as bystanders are concerned, only those who are directly implicated in the conduct will have a role in the procedure used to establish whether a contravention is established.
3. An organisational justice perspective
A basic tenet of organisational justice theory as it pertains to the workplace is that fair treatment by an organisation sends a message to individuals working within that organisation that they are valued and respected.Footnote 42 Studies in the psychology field have shown that ‘decisions made with respect for organisational justice are unequivocally associated with positive outcomes both for the individuals who are affected by the decisions and for the authorities and the organisations responsible for those decisions’.Footnote 43 This approach to justice does not seek to ascertain what is fair per se, but what individuals perceive or believe to be just and to identify the factors that contribute to these perceptions.Footnote 44 Four aspects of justice are commonly identified in the organisational justice literature: distributive justice; procedural justice; interpersonal justice; and informational justice.Footnote 45 Each of these has a different primary emphasis, with the first focusing on the consistency and equity of outcomes, the second being focused on the fairness of the decision-making process and the opportunity it offers for voice, and the final two categories reflecting respectful treatment and the perceived fairness of communications around the decision-making process.Footnote 46 Research undertaken in social psychology has shown that in the workplace context these four aspects of justice can enhance the nature of interactions between employees and the employing organisation and convey messages about an individual employee's social equality that may in turn encourage her to report inappropriate behaviours.
A way to ground the discussion of how organisational processes operate is to use as an example the Australian case of Richardson v Oracle Corporation Australia Pty Ltd (Oracle).Footnote 47 Few sexual harassment cases are in fact litigated as most are settled by negotiation or through the alternative dispute resolution processes of human rights or equal opportunity agencies. Fewer cases still examine how an individual's complaint was dealt with internally by the organisation. The Oracle case involved a pattern of conduct by Ms Richardson's co-worker that amounted to sexual harassment under the Sex Discrimination Act 1984 (Cth), for which her employer (Oracle) was found to be vicariously liable. The case is considered a landmark as, on appeal, it overturned the established practice of courts of assessing compensation within a very low range of damages in sexual harassment cases.Footnote 48 Apart from the question of whether the conduct constituted sexual harassment and whether the employer had taken all reasonable steps to prevent such conduct, the case also involved allegations regarding the manner in which Ms Richardson's complaint was handled by her employer. Although the procedures undertaken were described by the judge at first instance as unsatisfactory and as contributing to some extent to the psychological impact on Ms Richardson,Footnote 49 the court ultimately found that they were not matters for which the employer was liable to pay compensation. The manner in which her complaint was dealt with was found not to give rise to any basis for awarding any further compensation (beyond the actual harassment itself) as there was no causal connection established between the unlawful harassment and any conduct by the employer during the investigation.Footnote 50 But an examination of the way her complaint was dealt by the organisation highlights why individuals such as Ms Richardson, and others who may be considering reporting conduct, might perceive the processes to be deficient and therefore refrain from engaging with an organisation's internal processes.
The aspects of the complaints procedure that Ms Richardson highlighted as problematic were twofold. First, while an investigation was being conducted into the behaviours raised by Ms Richardson's complaint, she was required to continue to have regular email and conference call contact over work matters with the alleged perpetrator. In addition, no mention of the complaint was to be communicated to more senior management within the organisation. This was ostensible done to preserve confidentiality, although the judge observed that ‘[I]t could have done little for confidentiality. It was bound to be the subject of comment and speculation’.Footnote 51 Secondly, following the substantiation of her complaint, by way of sanctioning the conduct the employer gave the perpetrator a first and final warning, but he retained his position in the Melbourne office. This presented a problem with how the internal processes should manage the work relationship between Ms Richardson and the perpetrator moving forward, and what message these actions would convey to the complainants and others in that workplace. Ms Richardson was informed by her manager that in the circumstances it would be better for her not to go into the Melbourne office at all, and that a different position would be found for her. The Judge saw this as being motivated by a desire to ‘protect’ the complainant and as accommodating the complainant's desire not to have anything further to do with the perpetrator, and was ‘not intended to be, and did not represent, a demotion or a reduction in Ms Richardson's role or responsibilities’.Footnote 52 However the Judge did acknowledge that the complainant may have viewed the circumstances quite differently, stating:
I do not discount the possibility that Ms Richardson, who was clearly very upset about aspects of the investigative process, also made her own assessment at some stage that her professional prospects at Oracle might be affected by the decision that she should avoid the Melbourne office. It is likely that she considered the practical outcome of the investigation, therefore, to have been very unjust and that her career would suffer while Mr Tucker's, apparently, would not. I am far from sure that such an assessment was accurate. It was certainly not objective.
Where the perception is that, even if a complaint is substantiated through the designated procedures, it will be the complainant's career that is most impacted, internal processes are likely to only ever be an avenue of last resort. The platform of trust that is necessary for internal processes to be seen as a viable option is influenced by what employees observe regarding how other complaints are managed. Studies have found that employees are more likely to seek to have matters deal with by an external legal authority if they perceive the decision-making process used within an organisation as unjust.Footnote 53
(a) Distributive dimension
The distributive aspect of organisational justice is primarily concerned with outcome fairness. The psychological literature argues that individuals assess the fairness of the outcome they receive by comparing it to the outcome others receive or by whether the outcome they receive falls short of their expectations.Footnote 54 The distributive fairness of the outcomes that result from internal processes has on occasions been judged by courts and tribunals in relation to sexual harassment. For example, where an outcome involves terminating the employment of the perpetrator, this may have been challenged in subsequent unfair dismissal proceedings. In this context, courts and tribunals look to whether the same level of ‘offending’ receives the same or similar treatment.Footnote 55 But short of termination, the manner in which unacceptable conduct is sanctioned within organisations is rarely the subject of detailed examination. The fact that most matters are resolved on a confidential basis means that there is not a strong evidence basis for such an enquiry. However, the 2018 Australian survey data indicate that the consequences for those who engage in harassment are often minimal. As discussed earlier, 19% of survey respondents indicated that there was no consequence for the perpetrator, and that the most common outcomes were a formal or informal warning or an apology.Footnote 56 Studies on the punishment dimension of harassment have found that where the likely outcome and the manner in which the conduct is investigated operate as a weak deterrent, preventive measures such as policies and training have little impact on the occurrence of harassing conduct.Footnote 57
The flip side of this is what those who are subject to and report harassment receive in terms of outcomes. Again, the confidentiality that is instituted as part of many internal complaint procedures makes this difficult to judge in terms of whether there is consistency in outcomes for those individuals reporting harassment. This difficulty is compounded by the increasingly common use of non-disclosure agreements as part of the settlement of internal complaints.Footnote 58 But given what the successive surveys show, the equity aspect from a complainant's perspective is likely to be low. As Margaret Thornton has observed; ‘complainants might have the satisfaction of eventually being told they are in the right, but their careers will have been reduced to tatters in the process’.Footnote 59 Returning to the Oracle example, Ms Richardson's resignation letter, which was reproduced in the judgment, gives a clear picture of her perceptions of a lack of distributive justice. It stated as follows:
… once my written complaint was lodged, the manner in which the complaint was investigated, and the lack of action taken despite my complaint having been substantiated, leads me to believe that Oracle only pays lip service to the policies regarding sexual harassment it professes to abide by. In its policies, Oracle states that it requires its employees to demonstrate high moral and ethical standards in performing their work, as well as interact fairly and respectfully with each other. However, despite the findings of the investigation, the disciplinary action taken against Mr Tucker was not commensurate to the seriousness of his conduct, and subsequent events suggest that this was because Oracle was concerned about not compromising a deal that Mr Tucker was involved in. Instead, as a result of lodging a formal complaint, I have suffered a significant change and diminution in my role and responsibilities.Footnote 60
(b) Procedural dimension
The procedural dimension of organisational justice focuses on the fairness of the procedures by which decisions are made or other social processes are undertaken.Footnote 61 Earlier studies undertaken in the psychology field show that the procedures used to arrive at a decision are important to the way individuals assess fairness,Footnote 62 and this has been confirmed in a large body of subsequent research.Footnote 63 The procedural justice dimension is a core consideration in assessing organisational processes dealing with sexual harassment. Central to this dimension is the opportunity for voice and to have the situation judged by an unbiased decision maker. Much of the research in the organisational justice field emphasises the importance of voice for procedural justice.Footnote 64 Internal systems for lodging grievances or complaints over alleged harassment are a formal voice mechanism. Organisational policies and training generally seek to direct individuals’ concerns to internal complaints procedures. Even where an organisation has invested heavily in a well-intentioned complaints system, such a system will only capture those complaints where an individual feels empowered to voice those concerns, and the conduct is such that it is judged to meet a threshold of severity that would motivate an individual to exercise that voice.Footnote 65 Hence there is a material difference between having a system for reporting concerns or lodging complaints and employees perceiving it as an effective mechanism for remedying their concerns. A noteworthy observation made by the Judge in the Oracle case is as follows: ‘Ms Richardson only complained to Oracle when she saw plainly that she had become unable to manage the situation solely through use of her own inner resources’.Footnote 66
As the Australian survey data show, formal complaints are not an option readily taken up, and do not give an accurate picture of the extent of inappropriate behaviour within an organisation. Reporting conduct through institutionalised processes is a last resort for many complainants, after other mechanisms such as avoidance, appeasement or direct confrontation have not addressed the behaviour.Footnote 67 The risks to the individual in speaking up are a factor in the willingness to exercise voice, as is the perception of supervisors and managers as supportive of the exercise of voice.Footnote 68 A relatively common workplace scenario is one where it is common knowledge that there is a problem with harassment, but no one speaks up. Structures for the making of complaints do not by themselves satisfy the voice aspect, if an organisation does not seek to address the factors that may be impeding voice and take active steps to empower and support voice, including protecting complainants from mistreatment and retribution. Blanket statements that a complainant will not be victimised if they come forward with a complaint are inadequate, without evidence of this being operationalised within a workplace.
The exercise of voice is also affected by the legitimacy attributable to voicing behaviours within an organisation.Footnote 69 If the culture within a workplace is such that a potential complainant can see that voice is valued and respected, particularly by senior staff, and that exercising voice could result in meaningful change, then speaking up about inappropriate workplace behaviour is more likely to occur.Footnote 70 This rests in part on whether employees perceive the enunciated values of an organisation as having real meaning for the culture of the workplace and can see evidence of genuine commitment and action by senior staff when harassment occurs.Footnote 71 Without consistent and regular reinforcement of the message that such behaviours are not tolerated, including through actively addressing any inappropriate behaviours that are observed or where concerns are expressed, a complaints-based system is a limited form of voice.
In terms of how the procedural dimension impacts on an alleged perpetrator, a formalised process will be necessary to ascertain whether the conduct of a person who is alleged to have engaged in harassment is substantiated in order to sanction such behaviour through a disciplinary process. The means by which this determination is arrived at requires that procedural fairness be extended to the person subject to those allegations, including being made aware of the substance of the allegations and being given the opportunity to respond. Allowing individuals to voice their concerns regarding workplace behaviours may overlap with, but is not the same procedure that an organisation will need to invoke to determine whether any allegations are substantiated and if so the appropriate organisational response in relation to the person found to have engaged in the conduct. Moreover, the question of whether the organisation has failed in its duty to the person subject to the harassment is not resolved conclusively by looking at the culpability of an alleged perpetrator. As the case law indicates, it requires a much broader consideration of whether the employer has shown a sustained effort ‘in maintaining a workplace free of discrimination’Footnote 72 and a ‘lively and real interest… in scrupulous adherence to its warnings’.Footnote 73
In the Oracle litigation, Ms Richardson disputed the need for the matter to be dealt with through a formal complaints process. However, the judge observed that:
In my view there can be no criticism of Oracle for taking Ms Richardson's complaints seriously, requiring them to be stated precisely, investigating them and taking formal action in relation to them. A requirement for a precise written statement and an opportunity for explanation were minimum requirements consistent with prudence and fairness. I reject any part of the case against Oracle which depends on the suggestion that Ms Richardson's legal rights were infringed by the investigation carried out.Footnote 74
And further:
It was not a practical option that the complaints … be ventilated and acted upon without him having a chance to respond. I have already explained why I give little weight to the suggestion that it would have been open to Ms Sampayo to pass on Ms Richardson's complaints to senior management without adequate disclosure to Mr Tucker of the things that were said against him, which were serious in their nature. Despite any apparent cogency or force in Ms Richardson's complaints, that would not permit Oracle to take unilateral action without any chance for Mr Tucker to defend himself.Footnote 75
These points relate to the procedures required to ensure that the alleged perpetrator has an opportunity for voice and to present his or her version of events. Otherwise, any disciplinary action would be open to challenge through unfair dismissal proceedings as procedurally unjust. But this does not necessitate that it is the person subject to the harassment who should be required to substantiate that the conduct falls short of accepted workplace behaviour. That is the employer's responsibility. Nor is such a process a complete answer as to whether the employer has fulfilled its own obligations to maintain a workplace free of harassment and discrimination. The notion that there are others pathways by which an organisation might be alerted to and respond to concerns regarding sexual harassment does not necessitate any diminishing of the procedural protections for any individual where an organisation considers that a matter warrants further investigate and may result in some form of proportionate disciplinary response.
A procedural justice dimension that does not receive a lot of attention in the context of sexual harassment complaints is that of how the decision maker is perceived. Most complaints systems seek to have matters dealt with initially by a supervisor, a manager for a work group or human resources staff. The question then arises as to how receptive such a person is to having complaints voiced about the existence of inappropriate behaviour that has either not come to their attention or has not been addressed although it is known within a work group. The very fact of the complaint may suggest some shortfall in that person's management of the work group or in the human resources practices of the organisation. A common response to any potential conflict of interest arising from such a situation has been to send the complaint further up the organisational hierarchy to someone unconnected to the work group, or to outsource the complaint to an external adviser for investigation. While this might decrease the perception of bias, it does mean that management of the complaint tends to become more formalised, bringing with it an adversarial approach that tends to emphasise whether the complainant has sufficient proof to substantiate the allegations, rather than focusing on whether the employer has failed in meeting its obligations. Further, if this is the only form of enquiry undertaken it is a missed opportunity to look more closely at the nature of the prevailing work culture and to examine factors that may be contributing to concerns regarding workplace behaviours.
(c) Interpersonal and informational dimensions
Whether these aspects should be treated as separate dimensions, fall within a broad category of interactional justice, or are a subset of procedural justice has been the subject of debate.Footnote 76 In this context, it is not essential that this question is definitively resolved. Looking at the two dimensions in unison, they require that a complainant is treated with respect and receives an adequate explanation of the outcome. In the context of interactional justice, these dimensions have been identified as incorporating ‘the quality of the interpersonal treatment they received from others in the organisation’Footnote 77 and as the basis for a legitimate expectation of an explanation or account of decisions that affect them.Footnote 78 The interpersonal exchange that occurs should convey to a complainant that they have been listened to and that their concerns have been taken seriously. Similarly, providing an explanation of the outcome is an integral part of treating the complainant with respect.Footnote 79
A narrow construction of these requirements would limit the consideration of the treatment a complainant receives to their interactions with a decision maker, and to the explanation provided by the decision maker specifically to a complainant. But given that the decision maker is simply an instrument by which the organisation enquires into the alleged conduct and reaches a decision, these two dimensions can be seen in the broader sense of the respect and dignity afforded to the complainant by the organisation itself through the processes that it makes available to a potential complainant. As Lin and Leung suggest, procedural justice perceptions are orientated towards the organisation and the treatment is regarded as that of the organisation itself, as represented by those undertaking the processes in question.Footnote 80 In turn, the informational dimension also needs to be considered not only as it pertains to a particular named individual who has come forward to report conduct, but also in terms of the messaging back to the work group and the workforce as a whole.
If we look at the informational dimension through the lens of who is affected by the decision making, this includes those who observe the behaviours or may be aware that concerns have been raised or a complaint has been made. These employees have an interest in knowing what action an organisation takes in response. The capture of complaints within a formal complaints system has a tendency to cloak the complaint within a confidential structure and hence limits the opportunity for others to develop an understanding of whether the processes operate in a procedurally and distributively fair manner. But other employees have an interest in knowing that should they report conduct that they observe or are directly or indirectly exposed to, that their concerns will be taken seriously, and that any unacceptable conduct will be dealt with.
Confidentiality is recognised as presenting a conundrum.Footnote 81 It does provide privacy for a complainant who may otherwise be at risk of retaliation in the workplace, as well as protection for those against whom unfounded allegations are made. But as the Oracle litigation indicated, the reality of preserving confidentiality can be difficult given the extent to which the behaviours are known to others or the subject of speculation within the workplace. The emphasis on confidentiality can also be perceived as being about protecting the reputation and the impact of the investigation on the alleged perpetrator rather than out of concern for the complainant, as Ms Richardson suggested in her evidence.Footnote 82 The widespread reliance on the confidential resolution of complaints can contribute to a lack of transparency around the extent of the problem. It can result in those who experience or observe harassment being misled into thinking that their experience is an isolated event involving the aberrant conduct of an individual and not something that has previously arisen within the organisation or been dealt with on other occasions in a confidential manner. Hence, there can be a tension between the interpersonal and informational dimension. The next part of this paper considers whether providing alternative pathways and moving away from a reliance on individual complaints could assist in resolving this tension.
4. Moving beyond the established proceduralism
Many Australian organisations adopt a compliance approach to managing the legal risks that can arise in relation to sexual harassment. This approach tends to concentrate on minimising the risks associated with vicarious liability for the conduct of employees and the fairness of the treatment of a perpetrator to avoid unfair dismissal claims. These are legitimate concerns for any employer. However, this approach fails to adequately address other significant risks, namely those associated with employee perceptions of the experience of reporting sexual harassment and of the subsequent treatment that they and the alleged perpetrator are likely to receive. Given that sexual harassment remains a persistent and prevalent workplace problem, a narrow risk management approach has not been particularly effective. In addition, the reasons given for the under-reporting of sexual harassment in the survey data confirm that there is a fundamental problem with how organisational processes dealing with workplace sexual harassment are viewed. Hence, Australian organisations need to consider ways of expanding their current compliance approach, with a view to enhancing the effectiveness of their processes and improving the way those processes are perceived. This part examines the form this might take, focusing on other pathways by which concerns can be raised and dealt with, as well as communication and leadership strategies that can enhance employee engagement and allow organisations to acknowledge the systemic nature of the problem. This part also identifies how these aspects fit with the framework of organisational justice.
(a) Pathways
The standard organisational response to sexual harassment is to treat reported or observed harassment as a situation that should be managed by focusing primarily on policing the behaviour of individuals. This generally entails examining discrete events to determine whether the allegations establish a breach of a stated policy that governs the employment of any alleged perpetrator and, if a breach is established, implementing appropriate disciplinary action. Sara Charlesworth characterises this type of grievance management as emphasising ‘a legalistic procedural fairness’.Footnote 83 Individual wrong-doing is something that organisations should be concerned with, and the procedures by which an alleged perpetrator is dealt with by an organisation should offer appropriate procedural safeguards and a fair outcome for that individual. However, an organisation also needs to be equally concerned with the practices, systems and workplace culture within the organisation that allow such behaviours to occur.Footnote 84 The focus on individual wrong-doing has been described as limited to ‘apportioning blame for past wrongs’,Footnote 85 and operating as an ‘after-the-fact enforcement of centrally defined specific commands’ that can take place without necessarily inducing any change in the underlying culture or practices of the organisation.Footnote 86 Lizzie Barmes identified in her qualitative research regarding bullying and behavioural conflict at work that ‘[L]egally induced proceduralisation and formality within organisations were seen to take the focus away from problem solving, let alone using justice norms to do so, and particularly to deter early, informal attempts at resolution’.Footnote 87
An alternative approach is to respond to concerns raised or conduct observed, not by routinely funnelling these into a complaints procedure, but by giving due consideration to what is the most appropriate pathway for dealing with these situations and to the type of intervention that is required in the circumstances. Making this assessment is a responsibility that rests with the organisation. It should be undertaken with a view not only to addressing individual behaviour but to ensuring that the organisation is meeting its obligations to provide a harassment-free work environment. At present, many Australian workplaces adopt the approach that where concerns are raised by an individual the only way forward is to use the formal complaints procedure. However, an organisation has other options at its disposal that do not detract from a complainant's capacity to pursue a formal complaint if they so wish, or the necessity that a formal procedure adhering to procedural fairness is followed prior to any action being taken against a perpetrator.
In any workplace, the working environment and interactions within that workplace can give rise to any number of concerns, and it is the organisation that has the responsible to address these issues as the entity that ultimately controls the work environment.Footnote 88 In examining the regulation of sexual harassment Anne Numhauser-Henning has observed that ‘the addressees of prohibitions of discrimination are employers, with the power to institutionalise change they typically possess’.Footnote 89 Hence, an organisation has both the obligation and the capacity to respond to those concerns, irrespective of whether those concerns are formalised in a complaint. The AHRC's sexual harassment report outlines steps that could be implemented in the absence of a complaint, including monitoring the work environment, making changes to work practices to minimise the risk of conduct occurring, reinforcing the message of what standards of respectful behaviour are expected and what avenues exist for reporting behaviour, and conducting informal discussions where appropriate.Footnote 90 In addition to expanding the options an organisation has for managing risks, these practices can serve to acknowledge that reported concerns have been heard and that consideration has been given to a proportionate response that is not primarily about allocating blame. In its report the AHRC stated that ‘offering victims the option to pursue less formal ways of addressing their concerns need not result in “unfair” outcomes for the alleged harassers or increased legal risk for employers’.Footnote 91
A problem-solving approach of this kind can also use the insights gained from a variety of sources outside of a formalised complaints system to inform an organisation's response, including surveys, auditing, focus groups, performance review meetings and other less formal discussions and interactions. It can also entail supervisors and managers actively identifying conduct that may be questionable, and addressing it directly where appropriate, without necessarily waiting for a concerned individual to come forward or make a complaint. Another way forward is where organisations have procedures that allow individuals to take their concerns to a third party within the organisation who has been given the authority to make appropriate enquires about reported conduct. This type of approach can also draw on the willingness of those that observe inappropriate behaviour to speak up and not tolerate such conduct.
In this way voice is not simply linked to the making of complaints but can arise in a variety of forms. Such an approach recognises the constraints that exist on the genuine exercise of voice in many workplaces and the need for a variety of mechanisms to capture those concerns. By way of comparison, other workplace compliance frameworks, such as work health and safety, combine proactive and reactive mechanisms in which the reporting of conduct is but one of a number of pathways by which an organisation seeks to identify and eliminate behaviours that create a risk to the safety or welfare of individuals. These regulatory systems are not focused solely on complaints, but draw on a number of structural mechanisms, such as worker representation or workplace committees and the use of auditing and inspections.
Another aspect is the possibility of early intervention. In her qualitative research Lizzie Barmes found that reliance on formal procedures can worsen problems, not only in terms of employee marginalisation and disaffection, but also in terms of the lost opportunity for early resolution.Footnote 92 While not every situation will lend itself to early intervention, there is the potential for setting up early on a constructive dialogue within a workplace or work group around certain forms of behaviours. The circumstances surrounding a particular incident or event may require some limits on who is involved in such a dialogue, but there may be situations where it is appropriate to have an open discussion at an early stage that draws in employees that are both directly and indirectly affected by the conduct. Another example of an early intervention strategy is action by a manager or supervisor to deal with behaviours that clearly fall below accepted standards without waiting for an affected individual to feel they have no other options but to pursue a complaint. Similarly, referral to an alternative dispute resolution procedure (ADR) can be part of an early intervention strategy. Often it is only after a complaint is made that the use of ADR is contemplated. Early uptake of ADR can be beneficial in offering individuals an informal setting in which to hear how their conduct might be impacting on others and to explore ways to improve workplace interactions and practices. Consideration can then be given to what information should be shared about the procedure subsequently in a way that does not automatically mean that confidentiality prevents any feedback within the organisation, a point explored further below. These different forms of early intervention have the potential to offer different avenues for voice and respectful treatment and can provide greater transparency around outcomes. However, their utilisation should be premised on an assessment of their suitability in the circumstances and input from the individuals involved.
(b) Communication and leadership
Workplace training is the mechanism that many organisations use to inform their employees about their policies and procedures dealing with sexual harassment. Such training is a regular feature of employee onboarding and periodic training, as well as being a common compliance response to a substantiated complaint to reinforce the messaging around inappropriate workplace behaviour. Where training takes the form of an imposed compliance module focused on delivering information about definitions, prohibited conduct and complaints procedures it is unlikely to address the systemic problems that allow such harassment to persist.Footnote 93 Training delivered in this form can convey the sense that sexual harassment is primarily about aberrant individual interactions. There is the potential to enhance the efficiency of workplace training by using it as a forum for a participatory dialogue where employees have a voice in articulating why certain behaviours are considered inappropriate, and for collective deliberation on both the causes and the solutions.Footnote 94 In this way the training itself can speak to a number of aspects of organisational justice, such as the procedural, interpersonal and information dimensions, where it takes on a more deliberative and inclusive focus.
One of the key findings of the AHRC's report on sexual harassment released in 2020 was the ‘overwhelming lack of transparency about the prevalence of sexual harassment in many workplaces’.Footnote 95 Individuals within a workplace need to be able to see the organisation actively engaging with its stated commitment to a harassment-free work environment, and that those who are the target of inappropriate conduct do not suffer adverse consequences from reporting such behaviour. Similarly, employees need to see that those against whom allegations are made are treated fairly. This necessitates that communications regarding how harassing conduct has been dealt with are more inclusive, to enable observers to form a view about the overall fairness of the organisation's processes. This is more feasible in a system where concerns are not buried in an individual complaint procedure but are dealt with as part of a broader dialogue within an organisation about respectful and fair treatment.
This type of approach does require a more nuanced handling of the issue of confidentiality that takes account of the circumstances surrounding a particular event or pattern of conduct and makes an assessment as to the type of communications that are appropriate to those circumstances. There may be situations where events are well known within a workplace, such that confidentiality serves a limited function. Similarly, there may be circumstances where strict confidentiality undermines the development of appropriate organisational practices in response to an acknowledged problem. Another example is where the baselessness of the allegations necessitates that the exoneration of an alleged harasser is clearly communicated back to the workplace. However, there will be situations that justify only de-identified information being disclosed. In these circumstances it is not the details of what was alleged and how it was resolved that are pertinent, but the focus is on the general lessons arising from those situations that can be applied more broadly and fed back into the organisation as a whole.Footnote 96 Neither a rule of absolute confidentiality nor a rule of mandatory disclosure is warranted. It involves a careful balancing of the interests of those who experience the conduct, any individuals who are implicated in the conduct, and the broader workforce. Hence the tension between the interpersonal and information dimensions can be diminished, but not necessarily eradicated. Finally, another factor to take into account is that more open communication can assist individuals in assessing the fairness of the outcomes they and others receive from organisational processes. This in turn can make a positive contribution to the distributive dimension of organisational justice.
The leadership exhibited by senior management within an organisation plays an important role in legitimising the voicing of concerns regarding workplace harassment and in demonstrating the organisation's genuine commitment to hearing those concerns and facilitating fair outcomes. The AHRC identified in its report the need for a type of leadership within organisations that is visible and proactive in addressing harassment, identifies and challenges inappropriate behaviour, communicates clearly about what actions have been taken in respect of such behaviours, and is open with the workforce about shortcomings in the organisation's processes and how these will be remedied for the future.Footnote 97 This type of responsive leadership can be facilitated by having a variety of pathways to respond to concerns and by greater transparency about the nature of those concerns and the organisation's response. It also involves senior management oversight of the organisation's processes in a way that holds managers and supervisors to account for how they deal with workplace harassment within their work group or area of responsibility, in the same way they are accountable for other workplace compliance issues, such as health and safety. This oversight and accountability extends to how decisions are arrived at regarding the best way to respond to the situation and the type of intervention required. Overall, effective leadership on the issues of workplace harassment can demonstrate to employees that the exercise of voice is valued and respected, and that there are fair and effective mechanisms available to bring about meaningful change.
Finally, some of the research in this area suggests that in order to eliminate and prevent harassment, organisations should direct their efforts to enhancing the overall justice climate of the organisation, rather than simply providing policies and procedures directed to specific conduct such as harassment.Footnote 98 The benefit of this approach is that by having processes that promote fairness across all aspects of an organisation's dealings with employees (such as pay, promotions etc) the ‘justice climate seems to establish expectations of how employees should treat all others (eg not harassing certain team members; treat members similarly irrespective of gender) and foster those same values in employees (ie, treating others fairly)’.Footnote 99 Within this framework, harassment is not a misunderstanding or an isolated act but relates to the core values of equality and fairness that are the currency of the workplace.Footnote 100 This can promote a sense of distributive fairness with respect to the way an organisation deals with employees across all workplace issues, with a potential knock-on effect to how employees perceive the organisation's response to workplace harassment. Finally, this approach can also help to create a workplace culture where others are less inclined to go along with or ignore inappropriate behaviours and are more willing to speak up.
Conclusion
Australian anti-discrimination law, and in particular the way liability is framed in the workplace context, actually requires more of organisations than many of them provide through their carefully crafted and perhaps well-intended policies and procedures. When sexual harassment cases are litigated in Australian courts and tribunals, very few employers succeed in establishing that they have taken all reasonable steps to prevent their employees engaging in harassing conduct, as the obligation is seen as requiring a ‘lively and real interest’Footnote 101 and sustained effort to maintain a harassment-free work environment.Footnote 102 But the processes used by many organisations have been found wanting not only by courts and tribunals but also by their own employees. A lack of faith in internal processes and concerns regarding the fairness of the treatment they will receive from these processes is borne out in the survey data showing the reasons behind the under-reporting. Even with a framework of policies and procedures, training, and complaints mechanisms, if employees see the framework as simply a compliance device to minimise legal liability and regard the culture of the workplace as tacitly permitting such behaviour, then reporting is unlikely to be forthcoming. In addition, processes that are directed primarily to managing individual complaints to a confidential resolution are a reactive response rather than a preventative strategy.
The psychological studies referred to in this paper confirm that where internal processes do not convey a message to employees that they are valued and respected, there is a real risk that those who experience sexual harassment at work will not engage with such processes. The survey data from Australian workplaces bear this out. Rather than relying on a lack of complaints, either internally or to outside agencies, to maintain that there is not a problem with workplace harassment, organisations need to step up to expand the justice dimensions of their processes in order to build trust in the way the organisation responds to such behaviours. While mechanisms are required to ensure that an alleged perpetrator is treated in a fair manner both procedurally and in terms of any disciplinary outcome, this is not a complete account of the procedural concerns. In particular, the perception that there are likely to be negative consequences for the individual subject to the harassment if their concerns are aired within an organisation is highly problematic and needs to be countered by actual evidence of organisational practices that dispel this view. In addition, the opportunities for voice need to be much more diverse, to include a range of mechanisms than are not primarily complaints-driven. Finally, organisations need to provide genuine accountability through their responses to conduct that falls short of the organisation's values and standards if they are to change the perceptions of those subject to sexual harassment and those that observe the behaviours and the organisational response.
