Charlie catches up with Warren from Anti Discrimination Commission Queensland and talks about Sexual Harassment in the workplace in the first episode of our new series.  Transcript below.

Charlie:
The tourism and hospitality industry has suffered for years of many cases of harassment in the workplace.  It's come from co-workers, employers and guests alike.

We have found that the younger people in the workplace tend to fall prey to these kinds of harassment in their first time working so we've decided to have a new segment on harassment.

We've come here today with Warren from the Anti-discrimination Commission Queensland to talk about this subject.

Warren, what is it that you exactly do here?

Warren:
I am a Community Relations Officer with the Anti-Discrimination Commission.  My role is to basically educate the state of Queensland in relation to discrimination laws, harassment laws and human rights laws.

The Commission has a 2-tier function, 1 to handle complaints, the other to educate the community. I fall in that stream.

Charlie:
What is Harassment?

Warren:
There are a number of different forms of harassment, of course not all harassment is not unnecessarily unlawful, it might be unfair and inappropriate.
Human rights law covers sexual harassment and unlawful discrimination and some forms of vilification.

Workplace harassment may fall under the discrimination act, depends on whether it falls in the area of unlawful discrimination and sexual discrimination.

Charlie:
So the circumstances in each case?

Warren:
I guess looking at unlawful discrimination we need to come under a ground or attribute when we looking at sexual harassment it has a very specific definition.

The definition of it is basically in a nutshell: its unwelcome behavior of a sexual nature, generally in relation to you that a reasonable person would assume that you would have been offended by.

Charlie:
So lets put this into an example.  If I was a man or woman at work and I walked past the chef and he slaps my backside, would this be considered as sexual harassment?

Warren:
Firstly we need to identify that you felt that, that was unwelcome.  If you did we've covered the first criteria, it's unwelcome.

Then we need to find out whether its behavior of a sexual nature.  Patting someone on the bottom probably would be.

We then have to look at would a reasonable person assume that you would have been offended by that.

Now if your behavior is totally appropriate were you don't go around slapping people on the backside, well then a reasonable person is going to assume that you would have been offended by that.

On the other hand lets say that your also somebody that walks around and pats people on the backside and that somebody pats you on the backside well a reasonable person would probably say "well get over it"

You do it.

Charlie:
It has to be reasonable?

Warren:
It has to be reasonable, yes.

Charlie:
When we are talking about that, does it matter if it is a man or a woman?

Warren:
No.  There is a bit of a myth that sexual harassment is all about males preying on women, and certainly the case law we have the amount of complaints we get in would indicate that it is a major problem that certainly faces women.

Certainly, we also get a fair share of cases here though were males are sexually harassed by males.  I guess the myth around that is that it's quite often gay men that prey on other men, which of course that's totally wrong.

In my role before I was a Community Relations Officer I was an Investigator/ Conciliator here with the Commission for near on 9 years prior to that.
I'm well aware that most of the male on male sexual harassment, the male harasser identifies as heterosexual.

So it’s about people getting into stupid disgusting behavior that goes too far.

Charlie:
When we are talking about this harassment, say we had the example of me before if I do not feel that, that was sexual harassment and I did not file a complaint but one of the other workers thought it was very unreasonable, would they be able to make a claim on sexual harassment or is it the person who is getting touched that has to?

Warren:
There's some debate around at the moment in that the behavior has to be in relation to you, for you to lodge a complaint.  Of course that is open to some level of interpretation - what is in relation to you?
Of course lets say that does happen to you, somebody does that to you and I'm in the same environment and I probably wouldn’t appreciate watching that happen.  If I could prove or argue that I found it unwelcome, that it was of a sexual nature and that a reasonable person could assume that I could have been offended by that well then its in.

I think there are still some grey areas in relation to sexual harassment so behavior like that you would need to be very careful of.

Charlie:
This grey area, is there a certain line that has to be crossed do you think?

Warren:
The line that has to be crossed is really about reasonableness.  The question then of course is what's reasonable?

If we look at it reasonable is not that difficult to really identify.

Charlie:
Do we have to go to the courts before we can define reasonable or can we do it ourselves?

Warren:
With the Commission there is 2 tiers of how we resolve disputes once their lodged. Conciliation is were we do it behind closed doors were we bring people together to talk about the issue and see if they can resolve it between themselves.

If they can resolve it between themselves to conciliation the commission won’t be deciding whether its sexual harassment or not.  

If they can't decide, if they cant come to some resolution in a closed conference the complainant - the one that’s lodged the complaint will be given the option to refer it to the Anti-discrimination Tribunal.

The tribunal at the end of the day may very well run a hearing and it will be the tribunal that will decide whether its sexual harassment or not. They will do that based on that criteria of unwelcome sexual nature would a reasonable person assume that you could have been offended.

Charlie:
Between sitting in the room and when it actually happens, what steps would you take?

Warren:
There are a number of steps you can do if you are sexually harassed.  I guess you need to weigh up with what you actually want to do sometimes of course the first option for anybody in any of these issues is they do nothing.  You need to weigh that up though.

Sexual harassment, harassment, not addressed usually continues.  

Charlie:
Is it ok to do nothing?
 
Warren:
Not particularly, as a human rights advocate I'm going to say no.  I'm well aware that they can at times take courage to lodge complaints and to take a grievance against certain employees.

We would suggest that the first instance that you can speak to the person and tell them that its not wanted and please don’t do it again.
If they don’t take that up if they continue to do it or if they treat you even worse then you could go to a manager or supervisor, team leader.  Speak to them about it.

If that does no good you could to see whether the organisation has an internal grievance process and lodge a grievance.

Failing that you could certainly come to us as an external agency.  You don’t have to run down the list, you don’t have to do all those steps that I just said you may very well come straight to us if that’s what you choose to do.

Charlie:
When you are talking about going to your employer, what is your employer’s responsibility?

Warren:
Employers come under particular vicarious liability provisions, where they may be very liable for the actions of their employees or their agents through the course of work.
So of course if, lets say if I sexually harass you then my employer could very well be liable for my behavior.
So, basically were it sits is they will probably sit right in the middle of the complaint as much as I will.

Charlie:
Employers today really have to make sure that they wipe out discrimination in the workplace?

Warren:
Yeah, most defiantly. There’s plenty of case law out the now were, its very common that the actual employer is the one who is named in the complaint and who then is the one who faces payment of damages.

This is civil law its not criminal law people are not penalised they are not convicted their not jailed this is civil law were ok you are compensated for the suffering that you have suffered. Usually what will happen is that it may very well be the company that pays for that suffering.

Plus of course to wreck their reputation.  Cases that go through a public hearing at the Anti-discrimination tribunal are public as I said so depending on the issue the media quite often will jump on it and of course the reputation of the company is at risk then as well.

Charlie:
What would be some of the detriments that people suffer from sexual harassment?

Warren:
I guess it depends on the person and what they actually faced.  Some of the detriments to this can be extremely damaging and very debilitating.  Quite often people would leave where they’re working, so they lost that level of employment, the have to find other employment.

Charlie:
They could waste whole opportunities for jobs?

Warren:
They could loose careers.  There’s many cases were people have spent a lot of time building a career then be sexually harassed and then leave that career and have to start all over again.

It can go to the extremes, it can go to people feeling suicidal, it can stop people can stop eating, they can become withdrawn.  It quite often will affect their personal intimate relationships at home.  I guess it can be extremely damaging in some cases particularly if there’s been some level of incidence that may have happened to them previous as well through their life.

So we need to be very careful because of the damage that this stuff can cause.  

Charlie:
Well thank you very much for sharing your time with us today Warren.  I'm sure that some people now have the courage and the knowledge to speak up against sexual harassment.

Tune into our next vodcast which is going to be on discrimination in the workplace and then we are going to do one on workplace bullying.

And if you have any questions or want to file a complaint just go straight to ADCQ and they will be happy to take care of that for you.