Sexually harassed at work! What should Mary do?
Published on July 10, 2018 by Michael Barnes
As first published by United Magazine Winter 2018.
Mary works in Local Government in NSW. She is 28 years old and has a boyfriend. Over the last 3 months a male employee has taken an “interest” in her.
He has begun to ask her questions about how she and her boyfriend spend their time, whether she would like to go out for a coffee with him after work. What she thinks of online dating services such as Tinder. What is her preferred position for sex and as he walks past her work station he started to touch her on the shoulder and arms when talking to her.
Mary has not encouraged him at all. When he has touched her she has said please do not do that. When he has asked her about her personal life she said that’s not a matter I want to talk to you about. Mary has politely declined his invitation for coffee. He persists with the invitation.
Mary has found herself becoming very cautious around this male employee and it is affecting her approach to other men in the workplace.
She believes she has been sexually harassed. With this employer she has not had any recent training in what constitutes sexual harassment, however she had such training with another employer. At the same time she does not want to make waves in the workplace as in every other sense the harasser is not a bad bloke. What should Mary do?
Mary has started to feel anxious about coming into work wondering what the harasser will say or do. He does not appear willing to stop.
What should Mary do?
It is unlawful in New South Wales to engage in sexual harassment. Sexual harassment is defined by section 22A of the NSW Anti-discrimination Act as
For the purposes of this Part, a person sexually harasses another person if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
The law is squarely against sexual harassment. The question is what does Mary need to protect herself from the harassment? Clearly, in context it could be argued that touching constitutes an unwelcome sexual advance. Clearly, the request for coffee in context could be argued to be an unwelcome sexual advance. Clearly, making enquiries of a preferred position for sex would be unwelcome conduct of a sexual nature. There is nothing Mary has done to encourage the conduct.
She is aware of the grievance process. She is not sure as to whether she should approach human resources. Mary is worried about the impact if she reports the matter on her position with the employer and with the wider workforce.
What Mary should do is get early legal advice and even before that it would be reasonable for her to discuss the situation with her doctor as to whether she needs treatment and what is the diagnosis.
The early legal advice will help frame issues for Mary to consider the matter from the perspective of:
- Is it a workplace health and safety issue?
- Is it a workers’ compensation matter? Is it potentially a work injury damages matter?
- Is it a matter to be simply dealt with as sexual harassment in the workplace and report it to the employer and leave it to the employer to conduct an investigation? Remembering the employer may well have the approach it’s their investigation and Mary may never know the precise outcome of the investigation. The employer may well seek to “gag her” while the investigation is underway. Directions can be sought to be given such as not to talk to anyone in the workplace about the allegation;
- Do nothing and hope that it goes away;
- Lodge a written complaint to the New South Wales Anti-Discrimination Board.
- A potential combination of a number of the matters raised above.
It is legitimate to consider notifying the Anti-Discrimination Board. There is nothing inappropriate with an early approach to the Board.
Indeed, if all or even part of Mary’s complaint occurred more than 12 months before her complaint was lodged with the Board, she may well find that the President of the Board declines to deal with it at all.
As an employee of the Local Government Council in NSW alleging sexual harassment, Mary does not have access to Federal legislation dealing with sexual harassment and does not have access to what we will refer to in broad terms as the Human Rights Commission.
What is important is that Mary has an element of control and it is an integral part of the decision making process rather than simply being the victim of the harassment and being marginalised by the process.
Many exotic creatures have been introduced onto the Australian mainland and one of the most dangerous is the “bush lawyer”. Mary needs skilled legal advice in this difficult circumstance.
The #MeToo movement has been very important in the last 18 months in showing the magnitude of the problems with sexual harassment in the workplace. Now Mary needs a solution.
So what should Mary do?
She should get expert legal advice. Anyone facing sexual harassment is welcome to call Michael Barnes at Carroll & O’Dea Lawyers on 1800 059 278 for an obligation free consultation to consider their options.
Mary is a fictional name and the facts in this article are simply illustrative of the underlying issue and not an actual example of sexual harassment.