In 2017 the USA Time Magazine awarded its ‘Person of the Year’ to ‘The Silence Breakers’ –women who have come forward to break the silence about sexual harassment and sexual violence. You may have heard about the Hollywood actresses such as Ashley Judd, Selma Blair and Alyssa Milano, who went public about sexual assaults and harassment by producers and directors
But two ‘silence breakers’ highlighted by the magazine worked in the hotel industry – Juana Melara, a housekeeper, who along with her coworkers experienced guests exposing themselves or masturbating in front of them, and Crystal Washington, a hospitality coordinator at the luxury Plaza Hotel, who was harassed by a male co-worker. The harassment was captured on CCTV but management took no action. Now she and a group of other hotel workers are suing the Plaza for failing to act.
A survey of more than 300 hospitality workers in Victoria conducted by the union United Voice found that 89 percent reported sexual harassment. Just 36% of those who were surveyed thought that management handled sexual harassment at work appropriately.
In 2014, a research study involving 46 room maintenance staff working at five 5-star hotels on the Gold Coast found that 44 had experienced approaches by male guests, ranging from inappropriate jokes to explicit verbal propositions and touching. One interviewee described her experience:
“When I went there he shut the door and I thought ‘Uh oh’ and I opened the door, and he said, ‘Oh, you don’t close the door when you are cleaning?’ and I said, ‘Yes, sir, the door must be open, it is hotel policy’ and he said, ‘Just close that door and you can have the money on the table’, and I said, ‘I’m sorry, sir, we are not allowed to close the door when we are working’. I said ‘I am very sorry’, and I went to the bathroom and started there because he was sitting on the bed, and then he undressed and went inside the bed and I grabbed my bucket and I ran.”
According to the Australian Human Rights Commission (AHRC), 39% of workers in the accommodation and food industries who took part in their 2018 survey had experienced sexual harassment in the past five years.
Many cases of sexual harassment go unreported – according to the AHRC, in 2018 fewer than 1 in 5 people (17%) made a formal workplace complaint about sexual harassment they had experienced. Almost 1 in 5 of those who did report were labelled a troublemaker, victimised, ignored or resigned.
WHAT IS SEXUAL HARASSMENT?
Sexual harassment is:
Unwelcome sexual advances or requests, or sexual conduct in relation to a person where, in the circumstances, a reasonable person would have expected the person to be offended, humiliated or intimidated.
Examples of sexual harassment include:
• intrusive questions about sexual activity
• offensive jokes with sexual content
• staring or leering in a sexual manner
• sexual or physical contact, such as slapping, kissing, or touching
• repeated sexual or personal invitations after the person has refused similar invitations before
• sexual assault (also a crime under the Crimes Act).
Sexual harassment is a form of discrimination, and is unlawful. It contravenes the Anti-Discrimination Act 1977 (NSW) and the Sex Discrimination Act 1984. Each State and Territory has laws dealing with discrimination.
Sexual harassment is unlawful:
• Between employer and employee
• Between fellow employees
• Between workplace participants (including volunteers, self-employed persons and contract workers) at the same workplace
• In receiving or providing goods and services (such as
accommodation, food and other services)
People who are subjected to sexual harassment can suffer from depression and other mental illnesses as a result. It demoralises employees and results in a loss of productivity, as well as preventing all employees from fully participating at work and gaining equal access to work opportunities. It can cause damage to a business’s reputation and loss of customer confidence.
In hospitality and retail industries, harassment by customers also needs to be taken seriously. There are often occasions where workers such as housekeepers may be alone in a room with a guest. Workers may be unsure how they are supposed to react or who they should tell if they are harassed by a guest or customer. The belief that the customer is always right may prevail. Also workers may be young, casual or not have good English skills which may discourage them from reporting harassment.
WHAT ARE THE CONSEQUENCES OF
SEXUAL HARASSMENT FOR A BUSINESS?
Apart from the damage in terms of productivity, morale, fairness and wellbeing, sexual harassment can be expensive.
Because of the risk it poses to workers’ wellbeing, if an employer does not eliminate or reduce the risk of sexual harassment in its workplace, it can be prosecuted for breaching the work health and safety legislation. This can
lead to heavy fines being imposed by a court.
Also, an employer can be liable for sexual harassment perpetrated by its employees under the discrimination legislation and this can lead to large payments.
In a case decided by the Queensland Civil and Administrative Tribunal in 2016, a woman employed by a company which managed hotels was awarded more than $313,000 for distress, psychiatric illness and loss of income. She had been employed as a guest service agent at a resort. One of the directors of the company suggested to her that if she was comfortable doing so, she could reside free of charge in one of the units owned by the company at another hotel to assist her in moving to Brisbane to take up her job. The unit had two bedrooms and one bedroom was occupied by a caretaker at the hotel. The woman agreed to take up the offer. On her first night in the unit she was sexually assaulted by the caretaker.
The Tribunal found that the company was liable for what the caretaker had done because:
• It could not show that it had taken any reasonable steps to prevent it; such as having a sexual harassment or antidiscrimination policy or training
• The unit was part of a workplace which it controlled
• The caretaker committed the assault in the course of his work, as he was required to be on call while in the unit.
WHAT NEEDS TO BE DONE?
Firstly, make yourself aware of the law which applies and your duties under that law – including anti-discrimination law and work health and safety law. You can find information at the websites of the Anti-Discrimination Board (NSW), the Australian Human Rights Commission and the work health and safety regulator in your State or SafeWork Australia.
The hotel and accommodation industry in NSW has approved anti-discrimination guidelines which explain the rights and responsibilities of hoteliers and their employees under anti-discrimination law, including in relation to sexual harassment. These are available on the NSW Anti-Discrimination Board website.
Your employer must have a gender-neutral policy on appropriate workplace behaviour. This should include:
• A strong opening statement on the business’ attitude to sexual harassment, that it is committed to ensuring that the workplace is free from sexual harassment, that it will not be tolerated and that disciplinary action will be taken against any employee or agent who breaches the policy
• The business’ strategy for eliminating sexual harassment
• A clear definition of sexual harassment with examples
• An explanation that sexual harassment is not behaviour which is consensual and welcome and based on mutual attraction, friendship and respect
• A statement of where sexual harassment may happen– for example harassment by a supervisor or manager, co-worker, contractor, or customer, as well as any work-related situations such as conferences, work functions or parties and communications such as emails
• The action that will be taken if a worker or guest sexually harasses an employee
• The responsibilities of management under the policy, for example modelling good behaviour and promoting the policy
• The responsibilities of staff, for example complying with the policy and offering support and information to anyone who is being harassed
• Information on how to report sexual harassment or other forms of discrimination and who to go to for help when it occurs.
You should also provide staff with information and training, which can include:
• Displaying anti-sexual harassment posters on notice boards in common work areas and distribute relevant brochures (from the AHRC, State and Territory antidiscrimination agencies and/or relevant unions)
• Train all managers on their role in ensuring that the workplace is free from sexual harassment
• Conduct regular awareness raising sessions for all staff on sexual harassment issues.
Make sure that everyone is aware of the policy and attends relevant training. Discuss the developments with your staff and make your position clear. Changing attitudes and workplace culture takes time and effort.
Christa Ludlow is a lawyer with over 20 years’ experience in employment law and administrative law, and a qualified workplace investigator, coach and mediator. She is a Principal Consultant with WEIR Consulting. Christa can be contacted here.
This article was originally published in the Executive Housekeeper Magazine Volume 23 No. 2
Related Article:
Sexual Harassment in the legal Workplace