Keeping sexual harassment complaints confidential

Wednesday, May 29, 2019, 03:40 AM | Source: Pursuit

Beth Gaze

The Geoffrey Rush defamation trial has highlighted two important points about the process of resolving sexual harassment complaints, and how we support people to do so.

Firstly, the Sydney Theatre Company’s practices allowed this very sensitive information to be leaked to a newspaper with obvious, foreseeable consequences, and against the express wishes of the woman who complained.

In 2018 this was one of three high profile examples where confidential complaints of sexual harassment were leaked, possibly due to inadequate procedures by the relevant organisations.

Geoffrey Rush speaks to the media outside the Supreme Court of New South Wales on April 11, 2019. Picture: Getty Images

And secondly, what are we to make of the judge’s assessment of who is a ‘reliable witness’?

Mr Rush has now been awarded nearly $A2.9 million (increased from $850,000 in general and aggravated damages) after winning his defamation case against The Daily Telegraph newspaper, over stories alleging he behaved inappropriately towards his colleague Eryn Jean Norvill.

Although the case was brought against the Daily Telegraph, Ms Norvill was further harmed by the process, in being compelled to appear as a defence witness and then by the judge’s comments that she was an unreliable witness, and had embellished and exaggerated her evidence.

The outcome of the case and her public shaming raise serious concerns about whether women and others affected will be prepared to bring complaints of sexual harassment at work. If it deters such complaints, then people will be unable to take action to protect themselves from harassment at work.

It is important to note that Ms Norvill was a relatively junior actor, though she had obtained a lead role as Cordelia in King Lear. Her future career opportunities rested on doing well in this role and on good relations with all the more senior actors involved, and with the Sydney Theatre Company – an important potential source of future work.

Eryn Jean Norvill speaks to the media after the three-week defamation trial concluded in November 2018. Picture: Getty Images

In these circumstances, it is hard to understand why she would raise a false or trivial complaint of sexual harassment against a senior and well-respected actor.

She sought to raise a matter for confidential internal resolution through the normal management and human resources processes. The need for employers to maintain confidentiality in such complaints is well recognised because of the risk of damage to reputations (on both sides) where leaks occur.

However, the Sydney Theatre Company’s practices allowed this sensitive information to be leaked to The Daily Telegraph newspaper. Although Mr Rush has been able to vindicate his reputation, and the newspaper has had to pay the price, the fundamental fault here is that of the employer whose procedures weren’t up to scratch.

Sexual harassment laws have been around since the 1980s, so this isn’t a surprise or a new requirement. But it appears that some organisations have still not come to terms with what is required of them.

The Rush case was only one of a number of high profile examples where confidential complaints of sexual harassment were leaked or dealt with inadequately in 2018.

Other leaked complaints included that by Catherine Marriott to the National Party about former Party Leader and Deputy Prime Minster Barnaby Joyce.

There were also multiple complaints against former Melbourne Lord Mayor, Robert Doyle.

Making a complaint of sexual harassment is a risky course for anyone and generally a last resort. Picture: Getty Images

Ultimately the National Party said it was unable to reach a decision on Marriott’s complaint, and the processes against Mr Doyle have been frustrated by his failure to respond to the charges. But all these situations are unsatisfactory.

Employers and organisations must take responsibility for the standard of behaviour they permit, and for any failure to have adequate protective processes in place to respond to sexual harassment complaints. The failures of management and process by the STC and the National Party have received little public attention. Meanwhile, according to several complainants, the complaints against Doyle weren’t handled satisfactorily through internal processes.

Sexual harassment (like sex discrimination and harassment on other grounds like race or disability) usually involves a more powerful person harassing a less powerful person. The disparity could be in terms of gender power relations or workforce seniority.

Throughout the workforce, women in junior positions are often dependent on men in senior or powerful roles for opportunities or advancement. We saw in the Harvey Weinstein case the possibilities that such power offers for exploitation, and the serious harm that can result to careers, opportunity and wellbeing.

I am not suggesting that Mr Rush engaged in any such conduct. But given these power relations, making a complaint of sexual harassment is a risky course for anyone and generally a last resort, taken only when unacceptable conduct goes beyond what they can handle themselves through attempting to avoid it or treat it as a joke.

Employers need adequate processes to deal with complaints in a sensitive and confidential way. Picture: Shutterstock

It may be that the conduct involved isn’t intended to harass, and the harasser simply doesn’t realise that their conduct is causing harm. In such cases, confidential resolution involving reinforcement of the appropriate standards of behaviour is likely to resolve the matter to the satisfaction of both people.

But where conduct is denied, a complaint can end up in an adversarial dispute which will focus on whether harassment occurred, which often becomes a question of who is to be believed.

Again, the power disparity may favour the harasser, and obscure the differential effect of the conduct on its target, and the subtle but very strong pressures on less powerful workplace participants such as junior women.

A defamation trial focuses primarily on the reputation of the person complained about, and the person who published the information. The person who complained is merely a witness, not even a party, and their employer, the Sydney Theatre Company in the Rush case, is also irrelevant. The STC’s management failure in handling the complaint and allowing it to be leaked received no scrutiny.

When Ms Norvill and Ms Marriott made their confidential reports, they didn’t intend to end up as public figures to be evaluated and critiqued in the press. And one of the women who complained about Robert Doyle faced very public media criticism over the issue of her complaint.

That this happened in the 21st century indicates a need for much stronger requirements on all employers and organisations to ensure they set proper standards of behaviour in their workforces that proactively prevents harm to their workers and members, and ensure they have adequate processes to deal with complaints in a sensitive way.

It is to be hoped that the National Inquiry into Sexual Harassment, currently underway, can develop a mechanism for ensuring employers take action and set up preventative mechanisms and procedures before harmful harassment occurs.

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