Not asking for it - Sexual Harassment and Discrimination in the Workplace

Fairfax Media spoke to 20 women for this investigation. They work in a broad range of roles: waitresses, retail workers, health workers, teachers, an industrial designer, sex worker, librarians and call centre staff. They are employed at places you’ve been to - bars, juice kiosks, public hospitals, the post office.

Moderate verbal or physical harassment is experienced daily by some, weekly by many of these women. Major incidents - rape threats, stalking, physical attack - happen to them maybe once a year. The consequences for their physical and mental health are serious and long term. "I am so glad you are doing this story," many women said.

If their experiences are typical, hundreds of thousands of employees face the same hazards every week.

So where are the hard-hitting safety campaigns? In the five years since the amendment to the Sex Discrimination Act was passed, there have been none. And despite their responsibility for enforcing safety, regulators have not pressed employers to protect staff against these newly unlawful acts.

“If we were seeing those sorts of injury rates for a piece of machinery, you’d expect to see ads on TV, there would be approved training, there’d be prosecutions,” says workplace relations and discrimination lawyer, Lisa Heap. “You’d have to conclude it’s entrenched sexism in regulating authorities.”

“You working here all alone?”, “You look sexy in your uniform”, “Stuck up bitch”, “Give me a blow job”.

Stop right there. Go back. Where did that go from being friendly to creepy? The sexist insult? The implied threat of violence? Actually, delivered with a leer or a snarl, all these comments crossed the line for the women they were directed to at work.

The law defines sexual harassment as any unwelcome sexual behaviour which makes a person feel offended, humiliated or intimidated.

About 25 per cent of female and 16 per cent of male employees have experienced such harassment at work in the previous five years, according to Australian Human Rights Commission data. About nine per cent of those were targeted by a customer.

Overseas research suggests an even greater prevalence of customer harassment in service industries, particularly those in which women and younger workers are over-represented. Among female retail workers, the incidence was as high as 40 per cent in a US study, and 67 per cent in a Canadian one.

Figures like these indicate the incidence could fairly be described as a serious and systemic hazard in many industries. Yet the AHRC, whose officeholders include national Sex Discrimination Commissioner Kate Jenkins, receives only about 200 complaints relating to workplace sexual harassment per year, a figure which has plateaued in recent years. Just 17 a year - about 9 per cent of the total - relate to the provision of goods and services (and that includes customers harassing employees and vice versa).

Jenkins, who was previously Victorian Human Rights Commissioner, says the picture is similar at state and territory levels, indicating at best, about 150 cases of customer-client harassment are registered each year, and only 750 in the five years since the law was amended.

Testimony from the people who work in frontline roles suggest that’s not the tip of an iceberg. It’s a snowflake on its summit.

Why the low numbers of complaints? Former sex discrimination commissioner Elizabeth Broderick, who was herself subjected to persistent harassment by a client as a junior lawyer, says it’s because such behaviour towards women is normalised. While men are also subjected to sexual harassment, mostly by other men, data shows it mostly happens to women.

In a 2012 AHRC survey, many people who had been sexually harassed denied it, even after the legal definition was read to them. It was only when given examples - lewd comments, cornering, displaying porn - that a quarter of them acknowledged it occurred.

We only “see” sex harassment when it fits a preconceived template of a male superior, a female subordinate, and physical acts of harassment, says RMIT legal studies academic Professor Sara Charlesworth, who co-authored an analysis of the survey.

Incidents that fit this template are far more likely to trigger a complaint with the AHRC or its state and territory counterparts, Charlesworth says. Only the most egregious cases head to court - like Kristy Kirk-Fraser’s $37 million damages claim against former David Jones CEO Mark McInnes in 2010.

Power relations are visible in hierarchical workplace relations. But they are invisible in many customer-worker encounters because qualities like deference, availability and friendliness are seen as an essential part of the job.

That helps explain why sexual harassment is seen as a private matter, not a workplace risk or even an issue, says Rae Cooper, associate professor in work and organisational studies at the University of Sydney. She co-authored landmark research in September on how social norms hold people back from making complaints about harassing customers.

It’s not just service culture that helps make harassment harder to spot (and easier to hide). Other workplace conditions contribute. Uniforms, for example, are associated with harassment in many women’s stories. Health professionals report frequent catcalls and “sexy nurse” or “sexy paramedic” when wearing work clothes.

For decades, feminists have rejected the idea that what a woman wears incites harassment or assault. But some businesses actively encourage the way a uniform or wearing samples of “the merch” effectively makes a worker’s body and appearance part of their job.

At her first job at a juice bar as a teenager, Edie was told the brand’s logo was emblazoned across the chest of uniforms deliberately and that sleazy remarks should be taken as a compliment “that customers think you’re hot.” She lost shifts when she started wearing the largest-size uniform she could find. Later retail jobs also required her to wear revealing versions of the women’s wear she was selling.

Some of the women who told their stories to Fairfax Media felt unable to raise the harassment with management. Others tried, only to be brushed off. Managers made excuses for the perpetrators: “He didn’t know what he was saying”. Or they blamed the victim: “you seem to attract that kind of thing”.

The trauma of harassment is well documented and the way management deals with it can compound it, Elizabeth Broderick, now special advisor to the United Nations on women’s issues, notes. “Women who are disbelieved or rejected when they complain to managers are doubly victimised”.

Sian, a nurse who works in two major public hospitals, says she rarely reports harassment, including rape threats, because the hospital’s technology is so unwieldy it has to be done after work, and she doesn't believe managers or the police take such incidents seriously. Hospitals are businesses - they protect themselves and rarely call the cops, she says. “If they are [called], their attitude is, are you sure you want to report it? Because it’s probably not going to go anywhere.”

When the stress builds and Sian can't face a shift, she takes a mental health day. But she wonders about the effects of long-term trauma, and how it has contributed to bouts of depression she has suffered and other emotional tolls.

Making employers potentially liable when their staff members are harmed by harassment was meant to deter bad behaviour and encourage employers to take responsibility. It’s worked that way in terms of staff-on-staff harassment, at least in bigger workplaces. High-profile cases have showed employers they need to take “reasonable steps” to protect staff (such as having a policy, complaints mechanism and training) if they wanted to avoid big, bad media attention and payouts.

But - so far - the threat of vicarious liability has not made employers take customer harassment seriously.

Australian Chamber of Commerce and Industry chief executive James Pearson says employers’ responsibilities in the area are limited, and did not respond to questions about how many companies have policies relating to customer harassment of staff.

“Sexual harassment reflects social attitudes, so responsibility for preventing it at work goes beyond employers… [who have] little ability to control customer behaviour,” Pearson says. He acknowledged policies and training could help employees respond to “inappropriate” customer behaviour.

Nor have workplace or safety regulators ramped up the pressure on bosses.

Where are institutions such as the Fair Work Commission, Fair Work Ombudsman and WorkSafe Victoria/SafeWork NSW? The laws they oversee prohibit bullying, discrimination or harassment in various ways, and protect workers’ right to safe workplaces. But these authorities have shown little interest in testing what they can do about sexual harassment, lawyers and academics says.

That doesn’t seem likely to change any time soon. The institutions themselves responded to questions by deferring to other jurisdictions or declining to comment. One institution removed links to discrimination-related advice from its website altogether after Fairfax inquired why all the links were broken.

That they can’t even see the problem shows how systemic and entrenched sexist assumptions about what “real” risks and who “real” workers are, critics say.

“The behaviours are seen as trivial, non-damaging, short term and OK,” says Paula McDonald, professor of work and organisation at the Queensland University of Technology.

That leaves rights organisations as the main watchdog. But they lack muscle. Human rights organisations can conciliate complaints and extract promises from employers about training. But they have no authority or resources to police them.

Even Sex Discrimination Commissioner Kate Jenkins acknowledges the limitations of her role. The commission relies on individuals bringing complaints, often at great personal cost. This puts an employee at loggerheads with his or her employer. And it can end up making them even more traumatised.

“People making a complaint just want the conduct to stop, and not to suffer as a consequence,” Jenkins says. “It’s confidence in their manager they need, that the manager will back them up and be supportive.” Broader campaigns involving multiple agencies and the community - like public health campaigns - would be more effective, she says.

Not good enough, says Lisa Heap, who heads the women’s team at the Victorian Trades Hall Council. She argues regulatory reform is overdue. VTHC is conducting a three-year survey of 500 women’s experiences at work (some of who spoke to Fairfax for this article). Based on its interim results, VTHC has called for sexual harassment to be recognised as workplace violence in a submission to a government review of WorkSafe.

Her call was backed up last week by two new Safe Work Australia reports that call for better awareness of “psychosocial safety” as an OH&S requirement amid rising rates of bullying and harassment in workplaces. Poorly managed psychosocial safety is costing Australian employers $6 billion a year, SWA estimates.

“We’ve known workplace sexual harassment causes injury to workers for decades,” says Heap. “Now, like the tobacco companies, employers are saying ‘oh, we didn’t know. But you can trust us to be responsible — we don’t need regulation’.

“This is a failure that all the authorities, all the regulators and all employers share responsibility for.”