Weinstein judgment a #MeToo win
In October 2017, the Harvey Weinstein scandal was revealed to the world. While Hollywood insiders may have known about what the film director was up to, the rest of us were increasingly appalled as the horror stories kept rolling out.
The conviction of Weinstein for rape and sexual assault provides an opportunity for closure for some of his victims, and a time to reflect on what progress has been made.
The #MeToo movement took off largely as a result of the Weinstein case, although it had actually been initiated a decade earlier by African American activist Tarana Burke.
In the employment context, the #MeToo movement called for improved policies, processes, investigations and decisions when dealing with workplace sexual-harassment complaints.
The ‘‘success’’ of #MeToo is difficult to assess, largely because sexual harassment thrives in private and there is no objective means to measure it. However, what has clearly been achieved is a change in public consciousness and an increased willingness to call out unacceptable behaviour.
Media reporting is an important barometer, reflecting and influencing public opinion on matters of acceptability. There have been several stories over the past two weeks that are interesting for what they reveal about #MeToo and New Zealand.
The first related to a former law firm partner attending a New Zealand Law Society birthday event, despite allegedly being under investigation by the Law Society itself for his role in a #MeToo controversy.
No-one can confirm whether the ex-partner is under investigation or what he is alleged to have specifically done, but plenty of noise has been created about his attendance at the event. The suggestion has been made that the Law Society should have stopped him attending.
What does this tell us? A common issue in sexual harassment investigations is how to balance confidentiality against complainants’ rights and the desire for transparency.
This also raises the question of whether alleged offenders should be prohibited from entering into confidential records of settlement with their employer where allegations of a sexual nature have been made. Alternatively, in this case, if an investigation is ongoing, why has it taken so long, and why do the complainants not know what is happening?
Another story related to comments by Southland Fish and Game councillor Ken Cochrane that ‘‘I thought, I’m listening to a whole bunch of chick scientists who, if you look at the view they were pitching, everybody in New Zealand should not shave their armpits . . . should whitebait in their jandals . . . after they catch one patty for tea they should sit down, hold hands and sing Kumbaya’’.
The Southland Fish and Game Council deputy chairman called
Cochrane’s comments appalling and the council is reportedly seeking a resignation from Cochrane.
This story demonstrates that while employers may not have the ability to change the way individuals think or act, they do have an ability to determine what behaviours will or will not be accepted by the collective.
Certain people still hold certain views, but this doesn’t mean we have to tolerate such absurd utterances in an employment context.
The third story related to a case heard in the Employment Relations Authority. The authority found that a man was sexually harassed by his female manager who was ‘‘touchy’’ with him, and commented on and touched his muscles. She was also found to have lightly prodded his side, touched the small of his back, taken a screenshot of his tinder profile and asked ‘‘which way he would swipe for her’’.
The authority did not uphold the unjustifiable dismissal claim, but did find that the manager’s conduct amounted to sexual harassment. Decisions like this deliver a public statement about what sexual harassment is and what society will not tolerate.
In the employment jurisdiction, these cases create a helpful precedent for decisionmakers undertaking their own investigations, and also provide guidance for employees.
So, how far have we come in New Zealand in light of #MeToo? In an employment context, it is clear that sexual harassment is still rife.
The good news is conversations are being had and decisions are being released by the courts that publicly condemn such behaviour. The flipside, however, is that this occurs after the damage has been done.
If we want to effect faster change, we need to shift the focus back to prevention. As a starting point, workplaces need to develop and implement effective policies, provide training, and ensure they have clear complaints processes and reporting obligations.
But policies and procedures will never be enough on their own. Workplaces need to create a culture and environment where employees feel able to call out unacceptable behaviour, whether this is happening to them or a colleague.
While the Weinstein conviction can be considered a global success for the #MeToo movement, the issue itself of sexual harassment and assault is far from being solved.
Every single person has a responsibility to take a stand against unacceptable behaviour and sexual harassment.