Industries turning to sexual perpetrator blacklists to keep harassment at bay
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It’s a scenario that plays out in workplaces around the country.
It begins with “locker room talk”, usually targeting women.
At first, the worker may try to smile their way through it, ask colleagues to dial it back, then insist they behave more professionally.
But their protests are met with suggestions they need to lighten up, they’re a “whining woman” or similar.
That’s what hospitality worker Sarah (not her real name) encountered just weeks into a new role.
But it didn’t end there.
She claims two colleagues engaged in a sustained series of harassment that lasted almost two years.
One tried to undo her bra strap at work, she alleges, and on another occasion one pushed her into a stockroom and made a crude sexual gesture towards her.
“I would say, ‘OK come on, guys, that’s not alright. Let’s keep it clean at work,'” she said.
“They started progressing from there and showing me pornographic videos, doing sexually explicit gestures in front of other staff, in front of customers. It was really belittling.”
With few other employment opportunities, Sarah felt she had no choice but to endure the daily taunts.
Eventually it started to take a toll on her mental health.
“I was anxious getting up, anxious going to work. I was anxious going to bed,” she said.
“That’s when I had a severe acute panic attack at home and I had to get an ambulance.”
Doctors advised Sarah not to return to work and eventually she decided to take her case to the Victorian Equal Opportunity and Human Rights Commission, and later a state tribunal.
But she signed a confidentiality agreement known as a non-disclosure agreement (NDA), so her real name can’t be used and neither her employer nor her alleged harassers can be identified.
Lengthy case followed by confidentiality
At the commission, Sarah went through a process called conciliation: a voluntary process where parties are brought together in front of a conciliator to try and reach an outcome.
Some people, like Sarah, hire a lawyer for the process, but many do not.
Conciliation through a commission is the most common way sexual harassment cases are dealt with in Australia outside of workplaces.
But it has become “routine” for both parties to sign an NDA at the end of the process, lawyers told the ABC. NDAs are also common when disputes are settled within the workplace.
Sarah signed the confidentiality agreement at the time because she was concerned her former employer might bad-mouth her to future employers.
Now, she is not sure she did the right thing.
“I was a bit sceptical about it,” she said.
“Part of me feels that it’s more to silence the person who has had the bad experience, and it gives more power to the employer.”
Many complainants feel unhappy about signing confidentiality agreements, according to Paula McDonald from Queensland University of Technology.
She has published a major study on sexual harassment cases going through Australia’s conciliation process.
“They often do so under duress,” she said.
“Sometimes that willingness to be confidential and to be silenced forever can change.”
Calls for NDAs to be banned or limited
While conciliation can save parties the time, money and trauma of court proceedings, the trade-off is their silence, Professor McDonald said.
“I would be a proponent of getting rid of confidentiality undertakings, except perhaps in very specific circumstances. I think they do more harm than good,” she said.
Melanie Schleiger, a lawyer with Victoria Legal Aid who has represented clients at national and state human rights commissions, agrees.
NDAs often mean employers cannot give bad references to employees who might have been terminated for their behaviour, she said.
This means repeat offenders can go through the system unchecked.
“People who have engaged in predatory behaviour are continuing to step up in their careers,” she said.
“This very widespread use of NDAs, in lots of ways, [is] perpetuating this culture of silence around sexual harassment.
“That could be resolved by legislation that limits the use of NDAs to certain situations.”
The closed-door nature of conciliation has forced some industries to create their own blacklists to prevent employers hiring repeat offenders, Professor McDonald said.
“There are larger organisations in some industries which are trying to address this problem through a red flag system … across an industry, linking human resource data,” she said.
“There are some challenges around that in terms of privacy.”
In its landmark Respect at Work report, the Australian Human Rights Commission (AHRC) documented overseas cases where NDAs have been banned unless a victim requests them.
It also discussed calls for a register of NDAs to allow repeat offenders to be identified and investigated.
But its only official recommendation was for a best practice note to be developed.
In a statement, a spokesperson for the AHRC told the ABC that under law it had a number of non-disclosure obligations.
“Confidentiality … helps foster a safe environment for complainants to seek reparation, and for respondents to engage with the process in good faith,” they said.
“The assurance of privacy means people come to the commission who might not otherwise seek any form of redress.”
Commissions lack transparency
The widespread use of NDAs has added to concerns that Australia’s conciliation processes are shrouded in secrecy when it comes to sexual harassment cases.
In her research, Professor McDonald found a lack of transparency in the conciliation process was a key problem.
For example, there are just five published conciliation case reports from 2021 on the AHRC website. Most state commissions publish only a couple each year.
This means it can be difficult for people considering going through the conciliation process to gauge their chances of a successful action, or of the potential financial sums awarded.
The commissions have also been criticised for being “toothless tigers” because they have little, if any, power to enforce any undertakings made by employers during conciliation, such as staff training.
“Unfortunately, commissions often don’t have the resources in order to be able to follow up those agreements,” Professor McDonald said.
The AHRC told the ABC it was calling for greater enforcement powers as part of its broader campaign to reform anti-discrimination laws.
“The commission’s conciliation process can be empowering for complainants, however the compliance framework that operates alongside it is limited,” a spokesperson said.
Criminal behaviour going unrecognised
Lawyers are also concerned that the conciliation process is being used inappropriately to address more serious offences.
“Over the past year, the lawyers in the [Legal Aid] team have been seeing a lot more cases that involve very serious sexual harassment — and that is sexual assault and criminal behaviour,” Ms Schleiger said.
Fiona Bigelli has represented clients at the AHRC and worked as a conciliator in the private sector.
She has also been asked to investigate matters that she says should have been dealt with by the police.
“We’re talking about criminal behaviour, we’re talking about rape, we’re talking about battery, we’re talking about physical assault,” she said.
“There isn’t a lot of consideration to actually looking at the substance of the behaviour.”
The AHRC does, in some circumstances, encourage applicants to report to police, but a spokesperson told the ABC it was not a mandatory reporter.
Ms Schleiger said employers that did not recognise potentially criminal behaviour could be in breach of legal obligations.
“Employers have a duty of care. They can be prosecuted for criminal offences under work health and safety legislation,” she said.
Delays and employer change uncertain
After years of waiting, Sarah was largely happy with the outcome of her case. But she says more should be done to prevent matters from being drawn out.
She said her former employer used delaying tactics.
“They weren’t cooperative. They just wrung it out too long, and everything was really inaccurate,” she said.
Sarah was eventually forced to take the employer to the Victorian Civil and Administrative Tribunal, finally getting a result through more conciliation.
“The time frame that I went through — years — seems outrageous and unethical and a waste of time,” she said.
In a statement, the Victorian Equal Opportunity and Human Rights Commission said it was highly unusual for a matter to run longer than a year, and they aimed to close matters within six months.
The commission said it tried to set timelines to avoid abuse and parties could withdraw and go to court if that happened.
Sarah is not convinced her employer will change its practices as a result of conciliation, but says she would still go through the process again.
“Someone needs to speak up for these things because it just shouldn’t happen,” she said.
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