How do you respond to a s-xual harassment complaint?
The $130,000 Oracle sexual harassment case shows that “well-intentioned but unskilled attempts” to respond to workers’ complaints can cause as much damage as harassment itself, according to a lawyer.
Harmers Workplace Lawyers general counsel and team leader Margaret Diamond told a client briefing in Sydney last week that employers must never assume a worker is exaggerating or “causing an unnecessary fuss” when making a sexual harassment complaint.
As reported by OHS Alert, former Oracle Corporation Australia Pty Ltd consulting manager Rebecca Richardson sustained both physical and psychological injuries after a male co-worker made sexual comments, advances and “humiliating slurs” towards her between April and November 2008.
Oracle was found vicariously liable for the man’s actions and ordered to pay Richardson $18,000 in damages, but this was increased to $130,000 on appeal to the full Federal Court in July.
According to Diamond, Richardson – who was represented by Harmers – initially complained of the co-worker’s conduct to HR, but was required to continue working with him – despite making it clear she felt this was inappropriate – while it conducted a “mishandled investigation”.
Diamond said HR took a “what might be considered naïve attitude” towards the co-worker, finding he had misunderstood his relationship with Richardson, he was remorseful, and mediation could repair the working relationship.
As a result, Richardson felt undermined and unsupported by Oracle.
She subsequently wrote a letter to HR saying, “Quite frankly, [the co-worker’s] sexual harassment was easier to deal with than HR’s treatment of my complaint has been… I regret having ever involved HR in this situation.”
Following this, Richardson’s working arrangements changed, and she believed she had been demoted.
Much of the damage caused to Richardson resulted from the complaints-handling process, Diamond said.
She said it was crucial for employers in similar situations to ensure they:
are sensitive and consider the practicalities of employees’ working arrangements while complaints are investigated;
take time to think about how employees interact and communicate with each other;
consider the implications of changing complainants’ work arrangements; and
take complainants seriously and don’t assume they are exaggerating or “causing an unnecessary fuss”.
Employers should also take the “simple and practical” step of referring to the Australian Human Rights Commission’s Code of Practice on preventing sexual harassment, Diamond said.
“It’s not the absolute law that if you follow this code you won’t be vicariously liable for anything that anybody does in your workplace, but given the learnings in this case, it’s a start,” she said.
“This article originally appeared on OHS Alert and is reproduced with permission”
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