| Issue 62 (WAIS 2) Contents
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Harassment and Discrimination
Sandy Ross, Secretary
CSIRO Staff Association
Introduction
Discrimination is illegal on grounds of gender, race, marital status, disability, age, family responsibilities, etc. Harassment is generally unwelcome and/or unfair behaviour. If the motive for the harassment stems from a characteristic of the person being harassed, the harassment could be a form of illegal discrimination. Sexual harassment is illegal.
The subtlety of discrimination in workplaces creates major difficulties with identifying it is occurring, let alone pursuing claims or eliminating it. Even where discrimination is less subtle, evidentiary standards can make it difficult to prove.
On the other hand, harassment by its nature tends to be subjective – deriving from how someone experiences behaviour of others, and the remedies tend to be more procedural than legal.
However, having pointed out these difficulties with identifying and rectifying discrimination and harassment, vicarious liability creates risks for employers who do nothing if a matter is raised. Modern risk management processes allow complaints to be made and taken forward at least initially. In some situations, with independent third party assessment via internal processes, Human Rights and Equal Opportunity Commission (HREOC) or the Industrial Relations Commission (IRC) an outcome can be achieved.
Which process should be used depends on what you want to achieve, and the specifics of the situation.
Some points relevant to processes
Someone subjected to discrimination and/or harassment will frequently be isolated from others in the workplace. Often it is very hard for them to recognise what is going on, at least for a while, and it is extremely difficult to make judgements about what they should do when in the middle of a such a situation. Sometimes there are people who work for the employing body who can assist – eg Equal Opportunity officers - but they can potentially have a conflict of interest between representing the employer’s interests and the interests of an individual who might have grounds for suing the employer.
Given these circumstances, it is essential that someone who believes they may be experiencing discrimination or harassment seek some independent advice from their union, or more expensively, from a lawyer. HREOC or a relevant state agency can provide some information but are not able to advise or advocate for individuals.
Risks for individuals
The risks to individuals from discrimination/harassment are sometimes hard to distinguish from the risks to them from complaining about the same. Both discrimination and complaining about it have been known to destroy the careers of the complainant. At a lower level, you could be left isolated and friendless in the workplace following the making of a complaint. The psychological effects flow out of the workplace and into your personal life, and if the path is taken to complain and proceed to legal action, such action can take years and create enormous stresses and expense.
Then again, as stated above, if you are subject to discrimination or harassment you are already exposed to many of those risks anyway. And if no one complains, the culture will remain unchanged. Choosing to directly combat discrimination through complaining is not the best option in every situation, nor is it the best option for every individual faced with the decision. The only generalisation about complaining possible to make here is as follows: Someone subjected to discrimination or harassment should get support and information and through that become empowered to make the best decision they can in the circumstances.