This article was originally published in The Conversationon 6 March 2019.

The #MeToo movement has reminded us that sexual harassment has not gone away. The legal tools we’re using are not working and may even be hiding the true extent of the problem.

Most sexual harassment complaints are resolved confidentially at the Australian Human Rights Commission (AHRC) or its local equivalents. Few go to court. This system has three fundamental problems.

kate jenkins

Sex Discrimination Commissioner Kate Jenkins, speaking at the CSW63 Side Event – Consigning sexual harassment to the dustbin of history – what it would take to achieve cultural change, March 2019. Photo Credit UN Women (CC BY-NC-ND 2.0)

Confidential processes and settlements

Confidentiality is essential to get people to the negotiating table. Who can forget the media scrutiny actors Geoffrey Rush and Eryn Jean Norvill were subjected to?

Even for people who are not famous, the potential media interest in a sexual harassment claim is a strong reason to settle, as it is for employers who fear reputational damage. But it means the community isn’t aware that sexual harassment is still occurring or how it’s being addressed.

Employers usually insist on a confidentiality clause when they settle a claim. I recently interviewed 23 lawyers in Melbourne, asking them how common confidentiality clauses are in discrimination settlements.

A solicitor told me settlement agreements “almost always” include confidentiality. Another described the confidentiality clause as “not negotiable”. A barrister said: “No one I know has ever settled on non-confidential terms.”

The lawyers said employers use confidentiality clauses to avoid opening the “floodgates” to other victims. Employees seek confidentiality if they have left the workplace and worry about what their former employer might say about them.

At their most extreme, confidentiality clauses have a chilling effect on victims, who fear the repercussions of discussing any aspect of their claim. At the same time, they protect the perpetrator at their current workplace and anywhere they work in the future.

A complex, costly legal system

Making a legal claim is complex and costly. A woman who has been sexually harassed could use her local anti-discrimination law or the federal system. The federal system is costly because if she loses at court not only will she have to pay her own legal costs, she risks having to pay the other side’s costs too.

If she’s been discriminated against, unfairly dismissed or has a worker’s compensation claim, three more legal avenues are open to her. These vary in terms of costs, procedures, time restrictions and levels of formality, so they’re difficult to navigate without legal assistance.

It’s not surprising, then, that most people don’t use the formal legal system and those that do tend to settle.

Individual burden

There is no equivalent of the Australian Securities and Investments Commission (ASIC) or the Australian Competition and Consumer Commission (ACCC) that can prosecute employers or represent victims, so the person who has been sexually harassed bears a heavy burden. As one of the lawyers I interviewed put it, the victim has to do “all the heavy lifting”.

Respect@Work

This week, the AHRC released Respect@Work, a lengthy report on sexual harassment. It made 55 recommendations, many of which are designed to improve the legal framework. Will they resolve these weaknesses?

In terms of shedding light on the prevalence of sexual harassment, the recommendations include that the AHRC and its local equivalents should collect de-identified data about sexual harassment claims and settlement outcomes, share this data and prepare coordinated annual reports. This is significant because at the moment they only release numerical annual complaint data. They don’t publish anything about the nature of claims or settlements. Acknowledging that some parties want confidentiality, the AHRC will develop “best practice” principles, which might include preparing a model confidentiality clause and making some disclosures permissible.

Lawyers told me they negotiate damages payments in excess of what courts are likely to order. Because settlements are confidential, they have no impact on the courts’ understanding of the harm of sexual harassment, and victims and their lawyers don’t have a realistic starting point for negotiations. It is pleasing that the AHRC has recommended the government conduct research on damages awards and that this should inform judicial training.

Lawyers repeatedly told me the risk of costs is the main reason victims don’t use the federal system. The AHRC recommended a losing party should only have to pay the other side’s legal costs if their claim is vexatious, which is how the Fair Work system operates. The government should act to remove this barrier right away.

The recommendations to increase funding for community legal centres and bring consistency to federal and local sexual harassment legislation (including adding sexual harassment to the Fair Work Act) will reduce the cost and complexity of the system.

But a problem remains – the burden still rests on the victim. The AHRC has proposed establishing a Workplace Sexual Harassment Council comprised of federal and local equality and workplace safety agencies. But this is a leadership and advisory body, not an enforcement agency.

The AHRC president is conducting an inquiry into reforming discrimination law. Changing the enforcement model and alleviating the burden on the victim must be considered as part of this broader project.

Dominique Allen, Senior Lecturer in Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

This article was originally published in Impact on 24 April 2018

Photo credit: x1klima, Woman and Grief

Anti-discrimination law was introduced in Victoria in 1978. But after 40 years we don’t seem to be any closer to equality for all. Could establishing a corporate watchdog be the answer?

Photo credit: Classic Film, Creative Commons

Wanted: Female, 22-25, for a secretarial role. Prefer single.

Imagine running a job ad like this today. Yet, before the advent of anti-discrimination laws, employers were able to limit applicants to very specific age groups, sex and marital status.

The introduction of Victoria’s Equal Opportunity Act in 1977 put a line in the sand for sexual discrimination in the workplace. While race discrimination laws already existed at a federal level, the various state governments brought in their own legislation to cover issues such as sex, age and disability discrimination.

In 1979 flight instructor and qualified pilot Deborah Wardley took Ansett Airlines to task under the new legislation after she was prohibited from being employed by them as a pilot due to her childbearing potential.

Writing to the Women’s Electoral Lobby, General Manager, Reg Ansett said: “we have a good record of employing females in a wide range of positions within our organisation but we have adopted a policy of only employing men as pilots. This does not mean that women cannot be good pilots, but we are concerned with the provision of the safest and most efficient air service possible [and so] we feel that an all-male pilot crew is safer than one in which the sexes are mixed.”

Subsequently, the case came before the High Court of Australia and much to the chagrin of Reg Ansett, Wardley won and went on to a successful career as a pilot.

Not far in 40 years

Fast-forward 40 years and have we really made that much progress?

Monash Business School’s Dr Dominique Allen doesn’t think so. And the move to private mediation is the main reason.

Dr Allen explains that in the early days of the legislation a number of prominent cases helped weed out the most blatant forms of discrimination and served to educate the public.

“When Deborah Wardley won the case, it was a significant victory for women fighting discrimination in the workplace,” Dr Allen says.

“But our legislation has really stagnated since then.”

Since the courts moved towards mediation and conciliation, most anti-discrimination cases are settled privately.

“The public thinks that discrimination was addressed in the 1980s and that it doesn’t happen anymore,” Dr Allen says.

And there are many reasons why people settle: the exorbitant costs involved, the risk of more costs if you lose, damage to their reputation and importantly the psychological pressures of being involved in litigation.

Most people don’t want to spend years pursuing a claim, and others who have lost their job simply move on and find another one, rather than front up to court.

While this makes perfect sense, it means that the whole system has become privatised — taking place behind closed doors so people aren’t aware that discrimination still happens and how it is resolved.

What does compliance look like?

While settling cases may seem sensible, from a business or employer perspective, they don’t know what compliance looks like.

There is no deterrent aspect – they can’t see that someone else has made a claim against a certain issue or behaviour and make moves to prevent it from happening in their own organisation.

“There are problems with the system which focuses on the individual rather than the broader society,” Dr Allen says “We cannot rely on an individual to address the discrimination to “name, blame and claim” it as discrimination.”

She advocates a watchdog similar to corporate regulators to shift the focus to the employers and to business because they are best placed to foresee the impact of their actions on equality.

She proposes that such an enforcement body could make claims on behalf of people or represent them, in the way the Fair Work Ombudsman can in the industrial relations sphere; currently, there is not an equivalent body for equal opportunity.

“There’s nobody like the Australian Securities and Investment Commission (ASIC) or the Australian Competition and Consumer Commission (ACCC) that can step in and enforce the law or pursue a case – it relies on an individual who is often a vulnerable person,” she says.

Other options to improve the current system include putting requirements on employers and business to act first, rather than waiting until discrimination occurs. Dr Allen says the UK does something similar; public authorities need to have “due regard to the need to advance equality of opportunity” in their undertakings.

Tickets please

Another early case involved Victorian trams issuing scratch tickets that were difficult for visually impaired people to use, while removing conductors who had traditionally assisted people with different disabilities to use public transport. Nine people with various physical disabilities took the Public Transport Corporation to court on the basis that these actions were a form of indirect discrimination. The judges of the High Court agreed.

Dr Allen says that it was one of the unusual instances where the court ruled that it was not just going to compensate people, it ordered the government to review the ticketing system on trams.

It would be unusual today to see a wide order like this. Now, court-awarded damages are fairly insignificant amounts. Yet Dr Allen says it is one of the things that is needed to tackle discrimination effectively.

She says that while having the conciliation system is good – in that it saves costs and the deal remains confidential – from a societal perspective it doesn’t address broader issues.

Bring in the stick

From a business perspective, low amounts ordered by courts are not a deterrent and don’t encourage compliance with the law. Dr Allen says: “there is no big stick to wave if people are not doing the right thing. There is no fear, as would be the case if the ACCC was pursuing them, that a hefty penalty may be imposed if they’re found to have acted unlawfully.”

So in 40 years have we addressed the discrimination in this state?

“I think we have come a long way. There are barriers that have been broken down and blatant forms of discrimination don’t happen anymore but there’s still much more than the law could do to address those hidden systemic forms of discrimination,” Dr Allen says.

Victoria’s legislation was modernised in 2010 and Dr Allen is currently working on research to see how effective these changes have been which is due later in the year.

This article was first published on Impact. Read the original article