The Ministry of Business Innovation and Employment (MBIE) has set up a register to record allegations of sexual misconduct in the workplace. This comes following a direction from the Women’s Minister, Julie Anne Genter, in the broader social context of the #metoo movement.
Genter has also sought advice from MBIE as to how the data could be used, for example, to track patterns of sexual harassment complaints against specific employers, or in specific industries. Equal Employment Commissioner Dr Jackie Blue welcomes the creation of the register and has suggested combining the two organisations data.
The register is a positive step to address the issue of sexual harassment in the workplace, and to ensure the conversation regarding gender equality and respect continues.
I have been involved in a lot of sexual harassment cases. I’ve acted on both sides, representing employees alleging sexual harassment by their employer or a colleague; for employers, the businesses defending the claims; and also for employees being accused of harassment. None of the cases I have been involved in have made it past mediation to the Employment Relations Authority of the Employment Court, yet.
I don't think this is a reflection of my ability or otherwise. Many of my colleagues are in the same position. It’s not actually that surprising when you consider all the circumstances of these cases. Putting to one side the evidential challenges of litigating a sexual harassment claim in the employment institutions, it is incredibly stressful, time consuming, and costly, for the employee making the claim. Consider this, the usual advice to an employee in this situation considering a settlement:
“You have a great case. You are likely to be successful and be awarded remedies including compensation for the humiliation, loss of dignity, and injury to the feelings you’ve suffered. However, those remedies will be significantly diminished by your legal fees – the amount of costs you will be able to claim will not cover those fees. You will also need to prepare for and give evidence at the Authority’s investigation meeting, which won’t occur for several months. You are likely to have to sit across a table from the person you have accused of sexual harassment. You will be cross examined by their lawyer or representative, who will either minimise their client's behaviour or outrightly deny any wrongdoing on their behalf, explicitly or impliedly labelling you a liar.
Your spouse, partner and work colleagues may need to attend, give evidence and relive the hurt it caused them, as well as you. You will need to relive the very incidents that caused so much hurt and distress, and may not come away from that experience with a lot of, or any, monetary compensation left over even if you are successful. Instead, there is a settlement offer here that would avoid that entire process and leave you with some monetary compensation. It's less than what you might be rightly awarded, and you’ll have to sign a confidentiality agreement, but it avoids all of the costs, risks and unpleasantness of litigation.”
A similar conversation occurs with the employer as to the benefits of settlement – it saves time and cost, avoids litigation risk, ensures confidentiality and potential negative publicity following a publicly released determination of the Authority, and allows the business and its other employees to move on.
This isn’t a criticism of the Authority or its processes, although higher compensation awards (which we are starting to see) will help. Rather, it is meant to demonstrate that an employer in this situation has every incentive to make reasonable settlement offers, and the employee has very little incentive not to accept such reasonable settlement offers. In my view, this is a large part of the reason why a very real problem has been unreported and ignored.
MBIE’s register will go some way to addressing this under reporting. It is not yet clear what detail will be collected, but simply knowing how many cases are going through the mediation process will raise awareness and continue the conversation. Of course what is really needed is a culture shift in New Zealand workplaces, where the problem is acknowledged, and real steps are taken to address it.
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