Updated November 29, 2017 20:18:44

Photo: High-profile cases undermine the ordinary everyday nature of sexual harassment in Australian workplaces. (AAP)

Sexual harassment in the workplace is once again big news in Australia with the revelations and allegations about Don Burke.

There has been a lot of comment that this widespread attention and subsequent media and community outrage is a game changer — that at last the women affected are able to speak up, be heard and seek justice.

There has been less attention to the sheer persistence of workplace sexual harassment, reflected in the numerous complaints to human rights commissions across Australia from many ordinary women and some men who work out of the glare of the camera in ordinary jobs. Yet these formal complaints are only the tip of a very large iceberg.

The last sexual harassment prevalence survey run by the Australian Human Rights Commission (AHRC) in 2012 found a quarter of women and one in six men aged 15 years and older reported having experienced sexual harassment in the workplace in the past five years. That's a lot of workers.

One of the problems with the focus on high-profile figures such as Burke and the awful harassment and indecent assault he is accused of is that this shapes people's perceptions of what sexual harassment is.

Indeed the AHRC survey findings suggest awareness of unlawful sexual harassment remains limited.

Almost one in five respondents who reported initially they had not been sexually harassed based on the legal definition of sexual harassment, went on to report experiencing behaviours that are likely to constitute unlawful sexual harassment.

'Ribald humour' no legal defence

So what is sexual harassment according to Australian law?

While there are differences across Australian states and territories, sexual harassment laws here are some of the best in the world.

For example in the federal Sex Discrimination Act, sexual harassment is defined as taking place where:

• a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed;
• or engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
• in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Thus the test of whether behaviour is sexual harassment or not is not what the harasser thinks is sexual harassment.

Women in the TV industry have been talking about these men for years, we already know their names. The difference now is that we have the power to expose them, writes Juanita Phillips.

The law makes it clear the particular circumstances of the person harassed need to be taken into account, including for example their age, their sexual orientation, their religious beliefs and/or their ethnic origin. So the frequent response to those who complain about sexual harassment that it is "just a bit of banter" or "ribald humour" or that the person harassed cannot take a joke, is simply no legal defence.

The difficulty is that the Australian sexual harassment laws are underutilised.

In the AHRC survey of those who experienced sexual harassment, only one in five made a formal complaint. The majority of these workers made a complaint within their workplace, to their manager or employer, with very few making an external complaint to a legal service, union or human rights commission.

What shapes public perceptions of sexual harassment are the high-profile cases of senior men physically sexually harassing junior powerless women. Once again the AHRC survey suggests such cases are not typical. Half of the sexual harassment reported in the survey was by co-workers or peers, with the most frequent type of sexual harassment being non-physical.

The most common forms of sexual harassment were sexually suggestive comments or jokes; intrusive questions about private life or physical appearance; and inappropriate staring and leering.

The most frequent forms of physical sexual harassment reported were unwelcome touching, hugging, cornering or kissing; inappropriate physical contact; and sexually explicit emails or texts.

Complaints highlight failings of employers

Another problem with the focus on figures such as Burke is that it contributes to the myth that a sexual harasser is both some kind of monster and a lone individual behaving very badly.

This undermines the ordinary everyday nature of sexual harassment in Australian workplaces.

This is linked not only to blokey and sexist cultures but also to what are much more insidious work organisations, where women may be excluded from certain roles and opportunities, which can lay the ground work for a culture that turns a blind eye to sexual harassment.

Everyday sexual harassment is also linked to the increasing incidence of precarious work and the growing presence of vulnerable workers in Australia.

The awful stories that sometimes hit the media about young backpackers being sexually assaulted and sexually harassed while doing farm work highlight the fact workers who are young, temporary migrants, on temporary or casual contracts, and/or who work in remote areas may be more exposed to sexual harassment than other workers.

Photo: Workers who are young, temporary migrants and/or who work in remote areas may be more exposed. (By Matt Watson)

The slippage between the day-to-day experience of sexual harassment, recognised in the text of sexual harassment laws, and public understandings of what constitutes sexual harassment makes it difficult to both prevent and respond to it where it occurs.

Gardening guru Don Burke, who is accused of indecently assaulting and sexually harassing a number of women, tells Channel Nine it is a "witch-hunt" and Australians can make up their own minds about whether he is "the most evil person".

One of the striking features of complaints made to human rights commissions and, albeit rarely, to courts and tribunals is that these complaints are much more about the failure of the employing organisation to respond adequately to the original complaint of sexual harassment than about the harasser.

Between 2011-2014, my colleague Paula McDonald, from Queensland University of Technology, and I undertook a major study of workplace sexual harassment. What we found were many instances of managers and employers refusing to believe or respond adequately to a complaint of sexual harassment, often treating the person complaining as "the problem". We also documented the impact of sexual harassment on those who had experienced it.

The corrosive effect and ongoing consequences of a loss of self-esteem and confidence and of having to walk away from a job cannot be underestimated.

Workplace culture must be examined

The resounding feedback from those who had been sexually harassed, and from those lawyers and consultants who would be called in to mop up the fallout from internal investigations gone pear-shaped was for employers and managers to take a complaint of sexual harassment seriously, listen to the person making it, ask them what they would like to be done.

And if they opt for no action, treat the complaint as a canary in the mine and really assess whether the broader workplace culture tolerates sexual harassment.

While I hope the current flurry of media attention to sexual harassment in Australia results in a better understanding of just how damaging sexual harassment can be, it is important not to lose sight of many workers who the AHRC survey tells us have experienced it in the course of their employment in regular jobs in professional, clerical or office or service roles.

There is another sexual harassment prevalence survey being run by the Human Rights Commission in 2018. It will be interesting to see what, if anything, has changed.

Professor Sara Charlesworth is the Deputy Head of School Research and Innovation at RMIT University's Centre for People, Organisation and Work.

Topics: sexual-offences, work, women, broadcasting, television, community-and-society, womens-health, australia

First posted November 29, 2017 11:33:57