Sexed-up workplaces are blurring the line between harmless fooling around and harassment with hundreds of cases of sexual harassment going unreported.
KEY POINTS:
Someone at work has just gone too far - a smutty innuendo, a soft-porn video clip, a pat on the derriere, dear. Perhaps you can handle it; perhaps it's one of your workmates who's shifting in their seat wondering how much more they can take. There's a collective cringing, too loud laughter, a hasty topic-change.
"Sexual harassment" are dirty words for most of us. It's the horny elephant snorting in the staffroom: everyone sees it, but few dare call it by its name. Who wants to be the uptight spoilsport? Who wants to jeopardise their job or
business deal, to risk being rubbished or ostracised by their workmates or boss?
Especially when the frisson of flirting and sexual banter is sometimes the only thing that makes work bearable? And maybe you've gone too far once or twice, too?
In these sexed-up times, where well-bred girls mimic Playboy models or Paris Hilton on their Facebook pages and middle-aged housewives throw poledancing parties, the line between horseplay and power play has perhaps never been so blurred.
Because of the barriers to complaining, and the fact many cases are settled in-house, the official figures of sexual harassment cases do not reflect reality.
The Human Rights Commission received just over 100 sexual harassment complaints in the year to last June, most work-related - about 7 per cent of all complaints lodged. The Employment Relations Authority does not keep count of personal grievance cases involving sexual harassment.
Says Lara Hart, who has worked in the sexual harassment field for nine years,
"For every complaint there are hundreds, if not thousands, more employees who experience harassment but don't report it. It's not even the tip of the iceberg: it's a few crystals at the apex."
In Australia more than one in five women (22 per cent) and one in 20 men (5 per cent) aged 18-64 have been sexually harassed at work in their lifetime, according to a 2000-person survey taken last year for the Australian Human Rights Commission. One in 25 employees has been harassed in the past five years, with an almost even spread across small, medium and large employers. But only 16 per cent of those lay a complaint.
Anecdotally, many people let it ride or find a new job when it becomes too much. Aucklander Kate James, 31, saw two women leave the recruitment firm where she used to work because of a manager's lecherous patter.
"He was not PC at all," she says.
"He'd tell jokes, make comments on their figures. If they were wearing a tight top, he might say something like 'Julie's got the girls out on display today, bloody fabulous!'
"All the other women cringed; most of the guys thought it was a joke. He thought it was in good humour - he wasn't very good at reading their reactions. They both ended up leaving because of it, but they didn't feel it was a strong enough case to take any further."
Under law, sexual harassment falls into two categories. One is the classic lecherous boss/vulnerable underling scenario, involving explicit or implied sex-for-favours or sex-or-else demands. The second draws a line between sexual harassment and flirting or joking around: if it's unwelcome or offensive and either repeated or significant enough to have a detrimental effect on you, it's sexual harassment.
Of course, things seem much more ambiguous on the ground. One person's tease is another person's sleaze; one person's encouragement another's mortification. A 24-year-old Auckland office worker was horrified to discover the younger male under her supervision felt uncomfortable with her physically demonstrative style.
"Apparently, he was being teased by other people that we were having an
affair! I had no idea - I felt gross," she says. "At another place I worked, there was a guy who used to lean against people when he talked to them. It really upset people - but he was probably as shocked as I was."
Confirms Hart: "A lot of low-level complaints are just one person getting it wrong - they just didn't get the signs. What's fun and even improves productivity for one person could be insulting and scary for another - it's the same problem we have with sexuality in general."
But even extreme cases go unreported. Massey University psychologist Jocelyn Handy uncovered Neanderthal-style harassment at a male-dominated, small-town New Zealand meatworks.
Handy's report, published in 2006, reads like something out of the 1960s. One woman had a group of male workmates pour paint stripper over her car after she refused to "put out" for one of them. The lone female meat inspector was locked in a pipe shaft and had her equipment sabotaged; one of the few female boners had knives and 50kg slabs of meat thrown at her.
Handy says she "wouldn't be surprised" if we saw a rise of sexual harassment against women in male-dominated workplaces as the recession erodes job security.
Aucklander Erina Mackie, 21, works for a major high street fashion chain. From a list of 10 possible examples of sexual harassment off the HRC website, she says half either wouldn't bother her, or it would depend on the relationship she had with the potential harasser. On her "not" or "depends" list: personally sexually offensive comments, smutty jokes, unwelcome patting, pinching or touching and sexual imagery, such as a naked woman on a co-worker's computer screen.
"My manager from my old job would joke about things maybe say something about your boobs. We didn't mind. It was only after I'd been there a year, and we socialised outside of work," she says. "For some people, those comments would be sexual harassment, but for me it would depend on the relationship I have with that person."
If she did feel compromised, she says she would complain. "But I know some people would not feel so confident." And a complainer could expect to get hassled "if it was a person who everyone liked, or everyone else accepted the joking but you didn't".
Boundaries between on-duty and off-duty behaviour, between risque and risky, can become especially muddied in industries with high numbers of young workers, such as retail and hospitality, where there is lots of after-work socialising, long, late hours and young, inexperienced managers supervising young, inexperienced staff.
Many young people are casual workers, who have next to no job security. Mike Treen of Unite Union, which represents food retail workers, says all kinds of harassment go unchecked because workers are scared of being rostered off if they complain.
"The real problem is when harassment occurs between manager and workers, where there's already a power difference."
Laila Harre, head of the National Distribution Union, says harassment of all kinds is more widespread and entrenched than she realised as Minister of Women's Affairs in the early 2000s.
"I'm coming across increasing numbers of younger women, even who've had a good education and are pretty worldly, who put up with behaviour that as a 19 or 20-year-old I would have been up in arms about," she says.
"Twenty years ago, the general level of sexualisation was much lower. I'm sure people had as much sex, but the whole public portrayal of sex was much less. There's a lot of tough exterior among young women, an appearance of confidence and ability to deal with unwanted sexual behaviour, but I think there's also a high level of vulnerability.
"There's an assumption we should put up with it. I don't think that necessarily means we're comfortable with it, but there's a presumption in favour of sexualisation that is wrong."
It's not just young and inexperienced women who are the targets of harassment. British national Christina Rich received a confidential out-of-court settlement from PricewaterhouseCoopers last April for a sexual harassment, discrimination and bullying claim.
Rich, who was then the highest-paid partner of the firm's Australian office, had sought A$11 million ($13 million) from the company for damage to her reputation, loss of clients, lost earnings and counselling. She said her career had been blighted by a "boys' club" culture at the firm, and claimed when she asked her immediate boss to stop kissing her on the cheek, he told her he "knew what was best for [her]".
Men are also targets: they make about 10 per cent of sexual harassment complaints, of which half are against another man. David Lowe, employment lawyer and manager for the Employers' and Manufacturers' Association, describes a case in which a gay man complained about a female colleague repeatedly patting him on the bottom.
"She didn't seem to understand he didn't like it."
And the backlash against men who break the macho code is vicious. Last July, the ERA ordered a Christchurch construction firm to pay $12,500 humiliation damages to a builder's labourer who was sexually harassed at work by his boss and other workers. Once, the managing director "dry humped" him while he was bent over on site; other times he made remarks about the labourer's penis size and described what he'd like to do sexually to the man's 25- year-old daughter.
At a Christmas party, a few of the labourer's workmates flicked his genitals to try to make him spill his drink - apparently a common game. He quit last March because of stress-related health problems.
A statement by the firm downplayed the harassment, implying the offences were mateship rituals. Staff acting as witnesses explained to the ERA that all women related to staff were "fair game" for sexual objectification, and argued the man needed to "harden up".
Sexual harassment may read like a dirty joke, but it can be wretched for the target and poisonous for staff morale. When it drives people to change jobs or undermines their performance, it can stall them or send them backwards in their career.
Hart says smaller businesses often lack the resources or knowhow to deal with complaints properly. Employers are inclined to "lean strongly on their personal beliefs - whether she deserved it, whether he was just having a bit of fun; sometimes the man complained about is a mate of the boss."
Employers can end up "piggy in the middle" says Lowe. He believes employers must follow the correct steps when a sexual harassment complaint. "You get it wrong and you could get a court case from both of them."
In 2006, the ERA upheld a unjustified dismissal complaint by a former bar manager at Auckland's Mermaid Bar who had been sacked for harassment after a dancer complained about him touching her on the buttock, but had not been given a fair hearing.
False complaints are rare, but can be devastating for the target.
An Auckland man who lost his job over a false complaint says it took him 18 months to emerge from the "black pall" the event cast. He says his female colleague, who he considered a good friend, fabricated a story about him making an advance on a work trip. "Some women are not above using false complaints as a weapon to achieve their goals," he says.
"Employers need to remember this."
Lowe says the first step for the employer is to get a good handle on what's being claimed - ideally get it in writing - and ask if the employee wants an investigation.
Inform the other employee of the allegation and advise them to get a representative or support person. Some cases can be resolved in-house, but Lowe advises calling in an independent mediator. Where settlements are paid, they are generally around $5000.
The ERA and HRC processes are similar: first mediation then adjudication if no agreement can be reached.
Remedies include an apology, damages for humiliation or for loss of earnings, or a restraining order. Recent ERA damages for humiliation ranged between $7000 and $15,000.
More than ever, Harre argues, we need employers setting clear guidelines about no-go zones, and following best-practice in dealing with complaints. And we need to get people thinking about sexual harassment again.
"The problem is much more like it was in the 80s. A lot less has changed than I realised - or maybe it changed and then it's gone backward."
* Are these cases of sexual harassment?
Scenario 1: The male managing director of a Taupo motel complex makes denigrating comments about the co-manager's sex life with her older husband, also a co-manager. The digs are part of a subtle campaign to undermine the couple's relationship, and take place against the backdrop of lies and pressure from the managing director calculated to force the couple to leave, which they eventually did.
Scenario 2: A personal banker at ANZ tells her male manager that she is pregnant. When she is standing in the lunchroom in front of the mirror, her manager comments that her nipples are getting bigger. Later, the manager announces at a staff meeting she has "something she wants to tell everyone".
She complains, and files a personal grievance against ANZ.
Scenario 3: A man in his 40s discusses sex with a 14-year-old female workmate, a sales assistant. She can't get the conversation out of her head and complains to the boss. The girl, who had been sexually abused by a family member, claims the man has brought up sex in previous conversations, and also offered her lifts home. After a two-hour grilling by three managers, the lead investigator decides he can't determine who started the conversation at issue. He recommends a final written warning for the man and a verbal warning for the girl. Upset, the girl quits.
The ERA says:
1. Yes, 2. No and 3. Probably yes, according to the Employment Relations Authority (ERA) when it heard these cases, all since 2004.
In the motel case, the ERA awarded her $1000 for sexual harassment, and $7500 for unjustified constructive dismissal. She appealed the amounts, and was awarded $4000 for the harassment as part of a total $41,730 payout.
In the pregnant woman case, the ERA deemed the nipples comment was inappropriate but didn't have a detrimental effect on her job; and that the meeting faux-pas wasn't sexual.
In the 14-year-old's case, the ERA was only addressing whether her dismissal was unjustified and constructive (ie, she was unfairly forced out). It found she was, and awarded her $12,750 for hurt and humiliation. But the authority member's opinion was that she probably was harassed.
