“HURRICANE HARVEY” AND THE WINDS OF CHANGE
Have we reached the tipping point in the fight against sexual harassment in the workplace?
In late August 2017, Hurricane Harvey struck the Caribbean and the United States, causing unprecedented devastation and destruction. Less than two months later, a very different “Hurricane Harvey” followed, one that precipitated a renewed global consciousness over issues of sexual harassment.
The tempest began when entertainment mogul Harvey Weinstein, accused by more than 80 actresses and other women of rape, assault and sexual harassment, was fired by his eponymous company. Criminal investigations are currently pending against him in the US and UK.
This latter Hurricane Harvey (as it was termed by The Economist) intensified into a Category 5 storm with a maelstrom of further sexual harassment accusations crossing sexual orientation lines, eventually bringing down celebrities ranging from Kevin Spacey to Mario Batali. The field of politics was not spared from the mayhem, with harassment accusations leading to the resignation of Minnesota Senator Al Franken. It also helped swing the deep red state of Alabama over to the Democrats for the first time in a quarter of a century, following allegations of sexual misconduct against Republican candidate Roy Moore. Even women have not been spared, with Andrea Ramsey, the Democrat candidate for Kansas, dropping out of the race following allegations that she had sexually harassed a male subordinate. (Yes, men can be harassed by women too; the first harassment case I advised on 10 years ago in fact involved an excessively ardent female admirer obsessively stalking a man.)
In what has been dubbed the “Weinstein Effect”, people who had suffered sexual misconduct in silence across the globe came forward and spoke out against famous or powerful people. The “#MeToo Campaign” swiftly gained traction on social media, with people encouraged to share their suppressed stories of sexual harassment.
2017 looks to have been a tipping point, with USA Today calling it the year in which sexual harassment became a fireable offence. But will this truly be a watershed moment in the societal and professional treatment of sexual and other forms of harassment? Will it result in real change in the workplace and beyond? Lest we forget, there have been false dawns before, even very recently. The Access Hollywood tape released just before the US Presidential election showing Donald Trump boasting of groping or impulsively kissing women was initially seen as a game changer but obviously failed to derail his campaign – “locker-room banter”, he called it at the time – with some 42 per cent of women still voting for him.
THE LAW AND REALITY
Many countries legislate against sexual, workplace and other forms of harassment. Singapore is no different, with the Protection from Harassment Act (PHA, or POHA as it’s sometimes called) making harassment both an offence and also an actionable statutory tort, giving impacted persons the right to bring actions in Court for protection orders and damages. Employment contracts also often list misconduct and harassment as grounds for termination and summary dismissal. Many companies are now implementing zero tolerance policies to reinforce the position as well.
Yet the law can only do so much. Contractual provisions and company policies are only effective if complainants come forward, and if companies investigate and enforce set rules, rather than just paying them lip service. And for that to happen, companies must drum up the will to listen and act positively, instead of ignoring complaints, or entering into settlements and non-disclosure agreements with complainants. Yet that is precisely what has often happened in the past. I recently advised on a case where a complainant was asked by her large multinational company HR, also a woman, to just accept an apology and not demand a full investigation. Perhaps unsurprisingly, the harasser in question was a rising star in the company and a known protégé of the global CEO.
But for the tacit complicity of some of these HR and legal departments to stop, there must first be a shared understanding of what amounts to sexual and other forms of harassment. As with legislation in a number of other countries, the PHA does not actually exhaustively define what amounts to harassment, and that’s perhaps due to the sheer difficulty of putting a precise meaning on an often nebulous concept. In the sexual harassment context, rape and groping are obviously wrong, but they’re already separate offences in and of themselves. Hopefully all agree that a superior propositioning a junior for sex in exchange for a promotion is wrong too, but what about dirty jokes that aren’t directed at anyone? What about paying someone a compliment on his or her appearance? Context and objectivity are important, but not always easy to ascertain or apply.
I recently heard a marketplace veteran quite innocently remark that women need to tell men when their behaviour is harassing them, as men otherwise can’t be expected to know. Before a lynch mob is sent out for him, it’s worth remembering that while many of us wouldn’t agree with that sentiment, it’s also not exactly a unique viewpoint, and generational and cultural differences can and do play a part as well. For example, people from Western cultures might find it quite normal to hug and air kiss an acquaintance by the second or third encounter, while those from more traditional Asian cultures (especially older people) might never go beyond shaking hands.
WHERE DO WE GO FROM HERE?
The wider effect of the Weinstein scandal is laudable, but for this tropical storm not to peter out, there must be a real desire for change, coupled with a large dose of mutual understanding and continued, frank dialogue – such as what we had at a recent AWARE (Association of Women for Action and Research) forum held in conjunction with Bloomberg, where I was privileged to have the opportunity to speak.
And care should be taken to ensure that the phenomenon does not go to the other extreme of causing witch hunts or unfair dismissals (or excessive naming and shaming on social media) over bare allegations, without the checks and balances of due process and inquiry.
Are true and positive winds of change in store? Time will tell.
- European Employment Law Update 2018 Edition
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- Certificate of Good Conduct Required for all UAE Employment Visas
- Labour Court rules on automatically unfair dismissals in the context of changes in employment conditions
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