Recently published in the Sunday Business Post.
The firestorm triggered by the New York Times exposé of Harvey Weinstein’s many abuses of power continues to rage. Fresh allegations against celebrities are emerging on a daily basis and the problem of sexual harassment in the workplace is receiving unprecedented attention.
The focus is on public figures at present but, of course, any employee can be the subject of abuse while at work. We are already seeing allegations against Irish employers emerging, but how widespread is the problem?
A responsible employer will try to create an environment in which employees feel safe and confident enough to raise issues of sexual harassment freely. Similarly, a responsible employer will try to outlaw the practice to begin with. “Zero tolerance” is a phrase that is often bandied about but, like many clichés, it carries a great deal of truth.
A workplace in which all employees are unequivocally reminded that any kind of sexual misconduct will be dealt with speedily and effectively is far more likely to be alive to the possibility of abuse than one where a more laissez-faire attitude is taken.
Like most things in the workplace, this flows from the top down – and the onus is on managers and employers to ensure that the right kind of climate exists. We don’t need more legislation or procedures. The only effective remedy to combat sexual harassment is cultural change. That is the major challenge.
The Workplace There are no comprehensive statistics on the incidence of sexual harassment in the Irish workplace. In Britain, a recent study conducted by the Trades Union Congress suggested that almost 25% of respondents had experienced some form of sexual harassment in the workplace and there’s no reason to believe the problem is any less acute here.
Indeed, the Irish Medical Organisation published a report in June this year which suggested that, within the medical profession, 21% of female non-consultant hospital doctors reported experience of sexual harassment in the workplace during the last two years (while 12% of males reported the same).
It’s entirely possible that these statistics underestimate the scale of the problem, but even if they were completely accurate, they would be extremely worrying – they suggest that sexual harassment is an issue that affects up to one-quarter of the workforce in the most distressing and intrusive manner possible.
It is probably fair to say that, if practice matched theory, sexual harassment in the workplace would not be a significant problem in Ireland. Policies outlawing bullying and harassment, including sexual harassment, have been commonplace for years and workplaces that do not maintain these policies are rare.
Policy A typical policy will make it clear that any form of sexual harassment is prohibited, will set out the remedies that are available to victims and will also set out the consequences for the accused if a case is proven. Coupled with a robust grievance procedure, there are therefore multiple avenues open to an employee who is the victim of harassment.
The difficulty, of course, is that the victim of sexual harassment, or worse, may find it extremely difficult to raise a complaint in the first place. This is ironic because the law is clearly on his or her side – an employer who becomes aware of an accusation of sexual harassment is under a clear and unambiguous obligation to do something about it.
The courts and tribunals have demonstrated on multiple occasions that they will deal resolutely with issues of sexual harassment in the Irish workplace. An employee who has been the subject of abuse has a number of options available to them:
- Make a formal complaint under the anti-bullying/harassment policy and if the accusations are proven, insist that the employer take remedial action;
- If the employer doesn’t fix the situation (or doesn’t do enough), an employee has the option of bringing a discrimination action in the Workplace Relations Commission (or a complaint of victimisation);
- If the employer does nothing and the problem is intolerable, an employee could resign citing constructive dismissal – in circumstances where they simply cannot be reasonably expected to endure ongoing harassment;
- In extreme cases, if the harassment results in recognisable psychiatric injury, an employee has the option of issuing high court proceedings for personal injury.
Remedies There is no doubt that remedies exist, but victims of sexual harassment may understandably find it difficult to avail of them. An employee who has been harassed may be highly reluctant to come forward and subject themselves to scrutiny. The most cast-iron policy in the world is not going to make this any easier – what is needed is a significant shift in attitudes.
It will be interesting to see if the ongoing dripfeed of allegations of sexual harassment will be enough to trigger this. Certainly, these issues are being debated in an unprecedented manner, but the key factor is the attitude of employers.