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An ‘intersectional approach’ is crucial when dealing with workplace harassment claims
According to the sex discrimination commissioner, understanding the “nuance” of workplace harassment and discrimination claims is crucial for Australian legal professionals.
Lauren Croft
In a recent talk at the 2024 Australian Women Lawyers National Conference, sex discrimination commissioner Dr Anna Cody reflected on the National Inquiry into Sexual Harassment in Australian Workplaces and discussed the legal implications of workplace sexual harassment.
The session: “40 years of the Sex Discrimination Act: Leading now through the positive duty amendment”, was chaired by barrister and AWL immediate past president Leah Marrone.
Sexual harassment, Cody said, still “occurs in every industry, in every location and in every level in Australian workplaces”.
“One of the key things that we learned from [the National Inquiry into Sexual Harassment in Australian Workplaces] is that our laws need to move away from a reactive approach that relies on complaints by individuals, by victims, largely women, to one that actually requires positive and preventative action from employers, and that that preventative action needs to be proportionate to the employer’s size and nature,” she said.
“And we also need to listen to the lived experience of those who’ve been sexually harassed at work.”
In the last six months, Cody and the commission have held 61 submissions and consultations across the country – including individuals and groups.
“Some of the things that we’ve heard is, and from across all of those consultations, is how important it is not to normalise the little sexist comments and incidents, how important it is to speak up about those. We also heard about victim blaming, questioning from people and culture, which implies that it’s the person’s fault, such as, do you think your collar was too open? Was your skirt too short? Comments [that] entrench old stereotypes and enable that sexual harassment.
“One of the other common themes was the importance of dealing with the person with kindness and compassion. The importance of valuing the person, giving them time within a shift or a working day to step away, ensuring that they don’t have to work with a perpetrator. And then telling a victim-survivor about the process. What’s the time frame? What happens? Giving them time to prepare to tell their story rather than just ringing up and expecting them to talk about it,” she said.
“Not making the person tell it over and over again. And giving a person options, both within and outside the organisation. Having a simple complaint form, not a 36-page form. And having a simple policy that’s readable, that’s usable, and that’s a live document. And being clear on confidentiality, that you can talk to family and friends outside the workplace. Because it can so often appear that we’re trying to silence victim-survivors and protect the workplace and the perpetrator by doing so.”
Another key theme across the commission’s consultations was the importance of understanding intersectionality and how it functions in sexual harassment claims.
“An intersectional approach recognises that each of these parts of ourselves can be privileged in society or have more power associated with them. It’s also recognising that there are systems [that] privilege particular groups, and we, that combination of factors which contribute to our experience of life, access to education, housing, our choices in life and our work,” Cody said.
“An intersectional disadvantage occurs where there are two or more attributes of disadvantage compounding. For example, the fact that an Indigenous woman is more in disadvantage than either white women or Indigenous men. What intersectionality provides is a lens through which to understand how power and privilege function in society, but also ways to deconstruct that. It adds to our vision and our understanding.”
Within Australia’s anti-discrimination laws, siloing is also a key issue – where a victim will have to complain based on either sex or race, but not both.
“That’s not how life is; that’s not how people experience their lives and their experience of sexual harassment. They are enmeshed; they are connected. And so we need to think about something as racialised sexism, rather than the two being separate from each other or one on top of the other,” Cody said.
“It’s essential that we, as legal professionals, understand the nuance of how harassment and other discriminatory behaviour can be intersectional and the impact that that can have on our society, the severity of an incident and also the harm that it’s caused.”
Lauren Croft
Lauren is a journalist at Lawyers Weekly and graduated with a Bachelor of Journalism from Macleay College. Prior to joining Lawyers Weekly, she worked as a trade journalist for media and travel industry publications and Travel Weekly. Originally born in England, Lauren enjoys trying new bars and restaurants, attending music festivals and travelling. She is also a keen snowboarder and pre-pandemic, spent a season living in a French ski resort.
