No laugh­ing mat­ter

The “I was just jok­ing” de­fence doesn’t cut it any more.

New Zealand Listener - - SEX­UAL HA­RASS­MENT -

Work­place ban­ter is of­ten the Tro­jan horse for sex­ual ha­rass­ment. The ex­cuse that “I was just jok­ing” be­comes the fall­back po­si­tion for per­pe­tra­tors when they’re called out, says Bar­bara Plester.

A se­nior lec­turer in the Univer­sity of Auck­land’s fac­ulty of busi­ness and eco­nom­ics, Plester chairs the eq­uity com­mit­tee, and she has stud­ied work­place hu­mour since 2002.

“I started off think­ing it was such a lovely topic, but it’s not al­ways that nice – it has a dark side.” Hu­mour is a nec­es­sary part of the work en­vi­ron­ment, but it can have “a bite or a barb in it, when some­one is re­ally hav­ing a dig”.

“[The founder of psy­cho­anal­y­sis Sig­mund] Freud says we use hu­mour to re­lieve our­selves, and the things we re­lease in hu­mour are sex and ag­gres­sion. It’s a way of say­ing the un­sayable. But the ‘just a joke’ de­fence [for sex­ual ha­rass­ment] has long gone. We don’t get away with that any more.”

Al­though there is usu­ally a power im­bal­ance in sex­ual ha­rass­ment cases, Plester says she’s also seen cases, such as Hay­ley Young’s, in which a sub­or­di­nate tar­gets a su­pe­rior. “Ha­rass­ment can hap­pen by men to men and women to men, but it’s pre­dom­i­nantly men to women.”

A man might tell a dirty joke “to see where it gets us. She laughs; it es­ca­lates. But if he’s the boss, peo­ple laugh at his jokes be­cause he’s in a po­si­tion of power. He thinks it went down well, but he’s for­got­ten he’s the boss. Laugh­ter doesn’t mean I loved your joke. It can be em­bar­rass­ment, and it’s re­ally hard to stand up and say, ‘I’m not laugh­ing at that.’”

If you can’t put your hand up overtly, she says, you can al­ways try “un­laugh­ter”. “You stay po-faced and stony and it sends a very strong mes­sage if ev­ery­one else is laugh­ing and you’re glar­ing.”

Ha­rass­ment is more likely to hap­pen at work events where peo­ple are drink­ing – al­co­hol-fu­elled oc­ca­sions fea­tured in the re­cent Hu­man Rights Com­mis­sion case in which a se­nior fi­nan­cial of­fi­cer ha­rassed an in­tern and in the Rus­sell McVeagh com­plaints. Plester says she knows of firms that have stopped host­ing such oc­ca­sions be­cause of that risk.

Men might claim they can’t be min­dread­ers, or that ban­ter at work is healthy, but Plester says work, or work events, is no place for sex­ual hu­mour of any kind.

come out. Once a quirk of the tech­nol­ogy in­dus­try, non-dis­clo­sure agreements have pro­lif­er­ated across the busi­ness land­scape, pur­port­edly plac­ing every se­cret, every item of mis­con­duct out of pub­lic view.”

Re­port­ing by news­room.co.nz on the Rus­sell McVeagh case has also ex­posed an­other po­ten­tial bar­rier to com­plainants get­ting the jus­tice they de­serve: the hu­man re­sources (HR) staff who of­ten han­dle the al­le­ga­tions may face se­ri­ous con­flicts of in­ter­est. News­room re­ported that the big law firm’s HR team ad­vised one clerk com­plain­ing of sex­ual as­sault to be care­ful not to de­fame the per­pe­tra­tor. They sug­gested she look at the sum­mer pro­gramme “holis­ti­cally” and ar­ranged for meet­ings about the as­saults to take place at a cafe in the firm’s build­ing. A sup­port per­son for the clerk told News­room that “the firm was pri­mar­ily con­cerned with its in­ter­ests – its rep­u­ta­tion, its brand and its in­come. Only when the in­tern’s in­ter­ests were in line with the firm’s in­ter­ests did she get as­sis­tance.”

A ROCK AND A HARD PLACE

HR staff are obliged to deal fairly with both the ac­cused and ac­cuser, but when the ac­cused is in the com­pany man­age­ment, the ac­cuser is a ju­nior staff mem­ber and the em­ployer is pay­ing the HR per­son’s salary, it’s not hard to see the rock and the hard place on either side of them.

“I feel a bit sorry for HR teams,” says Univer­sity of Auck­land se­nior lec­turer Bar­bara Plester, of the fac­ulty of busi­ness and eco­nom­ics. “They have skin in the game, be­cause they need to keep their jobs and they need to keep the hi­er­ar­chy happy.” Hir­ing in­de­pen­dent ex­ter­nal in­ves­ti­ga­tors is one way com­pa­nies can avoid the ap­pear­ance of a con­flict.

Denise Hart­ley-Wilkins, a board mem­ber of the in­dus­try body Hu­man Re­sources In­sti­tute of New Zealand, says han­dling ha­rass­ment cases can be “a re­ally tough call” for HR teams. “Of­ten peo­ple are pro­tected at se­nior lev­els for a num­ber of rea­sons – power, pres­tige or sta­tus, or they could be a high-fee earner. That can hap­pen, and it’s not okay be­cause it sends out the wrong sig­nal. It’s wrong from be­gin­ning to end.

“[HR staff] have a duty of care to em­ploy­ees to pro­vide a safe and re­spect­ful work­place and to fol­low through on com­plaints or con­cerns. But they’re also em­ploy­ees, and depend­ing on the cul­ture of the or­gan­i­sa­tion, they’re at risk of los­ing their job in a cul­ture that pro­tects the ha­rasser.”

Hart­ley-Wilkins says that if HR teams are to get trac­tion in man­ag­ing sex­ual ha­rass­ment, they need to know that poli­cies are be­ing led, owned and cham­pi­oned from the top. “Codes of con­duct are just sheets of pa­per; it’s how they are put into prac­tice that counts. To bring them alive, they’ve got to have teeth, they’ve got to be widely com­mu­ni­cated and un­der­stood, and there need to be clear re­port­ing sys­tems right up to board level.”

As­so­ciate Pro­fes­sor Be­van Cat­ley, of Massey Univer­sity’s school of man­age­ment, says em­ploy­ers com­monly fail to in­ves­ti­gate al­le­ga­tions at all or con­duct an in­ad­e­quate in­quiry be­cause of min­i­mal ev­i­dence, lack of wit­nesses or pre­con­ceived im­pres­sions of par­ties. Poli­cies and pro­ce­dures are of­ten lack­ing, in­com­plete or not fol­lowed, or there is poor com­mu­ni­ca­tion around the in­ves­ti­ga­tion process and po­ten­tial out­comes.

He says the #MeToo cov­er­age shows there is a dearth of data on the preva­lence of sex­ual ha­rass­ment in the work­place. A ques­tion on whether peo­ple have been ex­posed to it will be added to the new Work­place Barom­e­ter sur­vey be­ing in­tro­duced by Massey’s Healthy Work Group this year.

CHANGE IN THE WIND

Ir­win and Eg­gle­ton, who have spent more than 40 years be­tween them in sex­ual ha­rass­ment in­ves­ti­ga­tion and work­place train­ing, say they’re con­fi­dent the prob­lem is in de­cline, par­tic­u­larly when com­pared with bul­ly­ing, which has been on the rise.

“Change is hap­pen­ing,” says Eg­gle­ton. “You don’t see the porn cal­en­dars at the panel beat­ers any more, and I think younger women are feel­ing more em­pow­ered to stand up and say no.”

In 2013, Massey re­searchers in­ter­viewed 250 peo­ple with oc­cu­pa­tional health and safety re­spon­si­bil­i­ties and only 40% agreed that lead­ers in their or­gan­i­sa­tion were will­ing to stand up to peo­ple who ill-treated oth­ers in their work­place. “Un­less your or­gan­i­sa­tional lead­ers are pre­pared to con­front it and deal with it, things won’t change,” says Cat­ley.

In Fe­bru­ary, Min­is­ter for Women Julie Anne Gen­ter an­nounced that from July, MBIE would keep cen­tralised records of sex­ual mis­con­duct al­le­ga­tions me­di­ated in the work­place. The fig­ures are al­ready kept as part of the min­istry’s me­di­a­tion records, but are bun­dled in with other cases.

Auck­land em­ploy­ment law spe­cial­ist Phillipa Muir, a part­ner at Simp­son Gri­er­son, acts mainly for large em­ploy­ers and says al­though it’s “un­for­tu­nately” been more com­mon for a se­nior ha­rasser to re­main in his po­si­tion while a sub­or­di­nate ac­cuser ends up leav­ing, that cul­ture is chang­ing and tol­er­ance lev­els are de­clin­ing. In her ex­pe­ri­ence, com­plainants who leave their job “al­most al­ways” re­ceive a pay­out – as they should – if they’ve been ha­rassed and don’t want to stay.

She won’t com­ment on the typ­i­cal size of such set­tle­ments. “It de­pends on the size of the em­ployer, the earn­ings of the com­plainant, what pre­dom­i­nantly she is want­ing out

“Of­ten peo­ple are pro­tected at se­nior lev­els for a num­ber of rea­sons – power, pres­tige or sta­tus.”

of this, and some­times on med­i­cal ex­penses be­ing paid if they’ve been very dis­tressed by this and have de­vel­oped anx­i­ety.”

Muir doesn’t agree with calls for an end to con­fi­den­tial­ity agreements, say­ing com­plainants usu­ally want to pro­tect their own pri­vacy and “move on”.

“I don’t think these set­tle­ments are de­signed to al­low ha­rassers to carry on in that way. Po­ten­tially there could be sit­u­a­tions where they don’t learn from [the ex­pe­ri­ence], but more of­ten than not, I think they do. You don’t tend to see se­rial ha­rassers, and I’ve worked in this area for quite a long time.”

She says more em­ploy­ers are tak­ing a stand and are de­clin­ing to en­ter into con­fi­den­tial­ity agreements with the ha­rasser. Muir says the or­gan­i­sa­tions she works with have “great in­ten­tions” and “do set a good cul­ture”, but many work­places can have staff who don’t fit the cul­ture or are out of touch with to­day’s ac­cepted stan­dards of be­hav­iour. “You can train em­ploy­ees as best you can, in­stil a good cul­ture and by and large build good work pro­cesses, but you can still have a rogue em­ployee.”

But Hay­ley Young, who’s fight­ing for com­pen­sa­tion for the ha­rass­ment and rape she says she suf­fered in the navy, says cul­ture and pol­icy in the­ory are of­ten very dif­fer­ent from what hap­pens in prac­tice.

“The party line of the navy would have been ‘Yes, you have to re­port it’, but the re­al­ity was that would have been com­plete ca­reer sui­cide.”

Usu­ally, sex­ual ha­rassers tar­get sub­or­di­nates, but for Young, an of­fi­cer man­ag­ing male sub­or­di­nates, the op­po­site was true. “It felt to me like the ex­ec­u­tive curl on my shoul­ders made me a tar­get. I think they re­spected me as a per­son, but it came down to a whole lot of un­con­scious bi­ases, like male priv­i­lege seep­ing away and they weren’t sure how to deal with it. These guys were my friends – re­ally nice guys – but in that en­vi­ron­ment they acted in a way that was con­sis­tent with the cul­ture.”

Young says ha­rass­ment oc­curred in mi­cro­cul­tures – in the ma­chin­ery con­trol room (MCR), for ex­am­ple, but not on the bridge, where the at­mos­phere was like a court­room. “In the MCR, I had author­ity, but I was com­pletely out­num­bered. It’s an in­ter­est­ing po­si­tion that they don’t put many peo­ple in, where you have author­ity over the peo­ple you are re­ly­ing on to train you. Tech­ni­cally, I out­ranked them, but they were teach­ing me about the ma­chin­ery spa­ces so I had to keep them on­side to be able to do my job and to learn.”

The al­leged rape to which Young’s com­plaint re­lates hap­pened in 2009, soon af­ter her train­ing be­gan, when she was posted to a Bri­tish naval base for 18 months. She says she was propo­si­tioned for sex up to six times a day in the UK and about once a month in New Zealand. She left the navy in 2012. Young went to the Court of Ap­peal in March in a bid for com­pen­sa­tion in New Zealand and Britain. The court’s de­ci­sion is re­served.

Welling­ton Unite Union or­gan­iser Jas­mine Taankink, who rep­re­sents work­ers in fast-food out­lets, cin­e­mas, ho­tels and call cen­tres, says sex­ual ha­rass­ment claims

“You can train em­ploy­ees, in­stil a good cul­ture and build good work pro­cesses, but you can still have a rogue em­ployee.”

are still “quite fre­quent” and, in the past five years, she hasn’t no­ticed a change in the num­bers she deals with, which hover around six a year.

“Al­ways the per­pe­tra­tors are men, and in the cases I’ve dealt with, they’re a man­ager or shift su­per­vi­sor, so there’s a power dy­namic. In most cases, they’re older than the per­son they’re tar­get­ing, but I’ve dealt with a lot of man­agers who are young cocky guys who have re­ally big heads, and they bring that to work and act re­ally in­ap­pro­pri­ately.”

Ha­rass­ment usu­ally be­gins with in­ap­pro­pri­ate com­ments but quite of­ten pro­gresses from there. Taankink says the union of­ten asks for a proven ha­rasser to at­tend a course to ad­dress his be­hav­iour, but there are few on of­fer. “We raised it with the Hu­man Rights Com­mis­sion and they said we’d just have to look around.”

Like oth­ers we spoke to for this story, Taankink was crit­i­cal of con­fi­den­tial­ity agreements. “I’m not for work­place gos­sip either, but I dis­like some­one hav­ing a trau­matic ex­pe­ri­ence at work and not be­ing able to share it.”

CASES TO FOL­LOW

The gen­e­sis of the #MeToo move­ment on so­cial me­dia was the ex­po­sure of high-pro­file sex­ual preda­tors in the arts and me­dia: Har­vey We­in­stein, Bill Cosby, Kevin Spacey, Bill O’Reilly, Roger Ailes and many oth­ers.

In New Zealand, the high­est-pro­file fall from grace so far has been that of for­mer Short­land Street ac­tor Rene Na­u­fahu, who in Jan­uary was sen­tenced to a year’s home de­ten­tion af­ter ad­mit­ting in­de­cent as­saults on six act­ing stu­dents.

But other cases are ex­pected to fol­low. Less than a week af­ter the Na­u­fahu sen­tenc­ing, the Screen Women’s Ac­tion Group (Swag) was launched with the aim of chang­ing an in­dus­try cul­ture that en­ables sex­ual ha­rass­ment and dis­crim­i­na­tion.

A Swag co-founder and spokes­woman, pro­ducer Emma Slade, says women in the in­dus­try are po­ten­tially more vul­ner­a­ble to ha­rass­ment be­cause they’re of­ten short-term no­madic con­trac­tors, fre­quently work­ing away from home in a hi­er­ar­chi­cal busi­ness. “Peo­ple don’t know what to do, who to talk to or what to say. They are ter­ri­fied of los­ing their jobs. Peo­ple say you should speak out, but that’s a re­ally hard thing to do, and the younger you are and the more down the chain you are, the harder it is.

“Do we have a New Zealand Har­vey We­in­stein? I don’t know. We’d like to think we’d know if there was, but it’s re­ally hard to say be­cause so very few cases are re­ported, be­cause of how women feel. The big­gest fear is be­ing black­listed, so that pre­vents peo­ple from com­ing for­ward. They are ter­ri­fied; they don’t want to put their head above the para­pet.”

Two meet­ings in March of hun­dreds of women in the in­dus­try came up with a num­ber of rec­om­men­da­tions that Swag will send to in­dus­try bod­ies. They in­clude trained “sex­ual ha­rass­ment reps” on each project to whom work­ers can take com­plaints, an in­dus­try-wide code of con­duct and ed­u­ca­tion en­abling peo­ple to bet­ter iden­tify ha­rass­ment. “The nasty end is easy to iden­tify, but what about the other, deathby-a-thou­sand-cuts kind of stuff?”

Slade says women who ex­pe­ri­ence or see ha­rass­ment hap­pen­ing tend to “just put up with it and try to find ways of man­ag­ing it and deal­ing with it. They say, ‘It’s just the way it is.’ What came up a lot is [ha­rassers] say­ing, ‘Don’t take it so se­ri­ously; I was just hav­ing a laugh.’

“As New Zealan­ders, we do tend to joke and laugh. We work in a stress­ful, in­tense en­vi­ron­ment, so you need hu­mour to liven it up. But when peo­ple get a bit handsy or make com­ments that are in­ap­pro­pri­ate, women don’t want to say any­thing in case they look like a spoil­sport.”

Slade says she’s seen ha­rass­ment hap­pen, but un­til now, didn’t know what to do about it. “I thought what I saw were iso­lated in­ci­dents, but the more I’ve got in­volved with the group, the more I re­alise it wasn’t iso­lated. It’s hap­pened be­fore and more than once. And the hor­ror of re­al­is­ing that … that’s dis­turb­ing. Now if I saw some­thing I would to­tally call it out.”

Slade says she’s heard of al­le­ga­tions in the New Zealand screen in­dus­try that “are too sen­si­tive to dis­cuss and in the process of be­ing dealt with. Ac­tors have to be vul­ner­a­ble to pro­duce the best per­for­mances, and any­one who is ju­nior is vul­ner­a­ble. Per­pe­tra­tors can spot some­one vul­ner­a­ble a mile off.”

At one Swag meet­ing, a woman asked if she should “name and shame” a per­pe­tra­tor. Slade says a rape preven­tion ad­viser replied that she should think about her own safety be­fore mak­ing that de­ci­sion. “Are there go­ing to be reper­cus­sions? Are you go­ing to be trawled through the me­dia and be given a re­ally hard time? You can get so an­gry you just want to let it out, but be­fore that, you need a com­mu­nity around to sup­port you.”

She says the #MeToo move­ment has made ev­ery­one think twice about their be­hav­iour. “That’s not nec­es­sar­ily a bad thing. If you’ve been do­ing some­thing in­ap­pro­pri­ate, you have to suf­fer the con­se­quences. It makes ev­ery­body think twice about what they’re do­ing and that’s ter­rific.”

In March, 450 women in the in­dus­try re­sponded to a Swag sur­vey on ha­rass­ment. One in three said they had ex­pe­ri­enced it, and two in three said they had either ex­pe­ri­enced or wit­nessed it. Slade says the re­sults are dis­turb­ing com­pared with rape preven­tion ed­u­ca­tion statis­tics sug­gest­ing one in five women has ex­pe­ri­enced ha­rass­ment.

She sus­pects there are men in the New Zealand screen in­dus­try who have a We­in­stein-like rep­u­ta­tion. “I do think they’ll be afraid, be­cause they would have seen this rolling out over­seas. A lot of peo­ple have lost their jobs be­cause of this be­hav­iour, and it’s hap­pen­ing in New Zealand and in other in­dus­tries. It’s like a tidal wave. Watch out: it’s com­ing.”

In a screen-in­dus­try sur­vey, two women in three said they had either ex­pe­ri­enced or wit­nessed ha­rass­ment.

Phillipa Muir: com­monly, ha­rassers stay and sub­or­di­nate ac­cusers end up leav­ing. Be­van Cat­ley: employers of­ten fail to in­ves­ti­gate.

Bar­bara Plester. “It’s re­ally hard to stand up and say, ‘I’m not laugh­ing at that.’”

Screen Women’s Ac­tion Group co-founder Emma Slade: fear of be­ing black­listed pre­vents peo­ple from com­ing for­ward.

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