Unfair Sexual Harassment Claims
Sexual harassment complaints can be unfair
The idea that a sexual harassment complaint could be unfair or unjust is a difficult topic for many people.
The thought that such a serious allegation could be made – and yet be wrong – makes people uncomfortable. For this reason, anybody facing a workplace harassment complaint faces a real disadvantage. Yet, it can be overcome.
Getting informed about your potential options before deciding how to respond to a sexual harassment claim is a good first step. There are a number of ways to learn more about these issues if you are the subject of an allegation, for instance:
- Learn more about defending allegations of sexual harassment (read on)
- Get urgent, initial legal advice from an employment lawyer (learn more)
- Get representation to challenge unfair or false allegations (details below)
Getting expert advice can be crucial to understanding your rights and responsibilities. It may also assist you in exercising your options and defending your interests. Employers may dismiss executives and employees found to have engaged in sexual harassment, as the Fair Work Act 2009 (Cth) categorises it as “serious misconduct”. Conciliation outcomes from the Fair Work Commission show getting reinstated is unlikely after dismissal:
Whether by agreement through conciliation or following a decision after a contested process, experience shows that it is relatively rare for people to be reinstated following dismissal.
As with any legal issue, there is no substitute for getting professional legal advice as early as possible. However, understandably, before hiring a lawyer, most people want to get better informed about the issues they face.
How sexual harassment is defined
Generally, Australian laws define sexual harassment as involving:
- Unwelcome conduct of a sexual nature;
- The conduct leaves the person feeling offended, humiliated or intimidated; and,
- The reaction of the person is reasonable in the circumstances.
The allegation cannot be substantiated if all the elements are not proven. Section 28A(1) of the Sex Discrimination Act 1984 (Cth) provides a definition of “sexual harassment”, which states:
Meaning of sexual harassment
- For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
- the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
- engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
Sexual harassment does occur. However, complaints of sexual harassment that are false and unfair also happen.
It is not always a case of the accuser lying about events. People can wrongly label something as sexual harassment by leaving out important context, or reframing events that do not accord with the true circumstances.
The case of Wong v Su  FMCA 108 provides one example of an untrue sexual harassment allegation. In that case, the court found that the allegations were false and motivated by the breakdown of a personal and financial relationship.
Consensual relationships in the workplace or conduct in the workplace that is invited, mutual or reciprocated, will generally not be classified as “sexual harassment”. Each situation needs to be judged according to the circumstances, however sexual harassment allegations made in the context of a relationship breakdown can warrant scrutiny of the credibility and reliability of the claims.
There is no ‘all-purpose’ response to harassment claims
There are many different approaches a person may take when faced with a complaint about alleged sexual harassment. The reasons for this are obvious. Not all allegations are the same and individual circumstances need to be considered.
Sexual harassment takes different forms. A 2022 study published by the Australian Human Rights Commission on workplace sexual harassment found that 19% of people reported having been sexually harassed at work in the previous 12 months. Further, about 33% of people (41% of women and 26% of men) reported being sexually harassed in the previous five years. The most common forms of workplace sexual harassment were reported as follows:
Workplace sexual harassment does occur. So do complaints of sexual harassment that are unfair or false. It is not always a case of the accuser lying about events. People can wrongly label something as “sexual harassment”. The context of an event or action may be misunderstood. Malicious complaints are possible.
The varied ways a sexual harassment complaint may arise, and the various forums in which sexual harassment complaints can be progressed, means there is no ‘one-size-fits-all’ approach to responding.
Understand your options
When responding to an unfair sexual harassment claim, there may be a number of options open. However, because the situation may be unfamiliar, involves short timeframes, and is generally highly stressful, people do not always appreciate their options or weigh them in a considered manner.
Four common options when responding to a workplace sexual harassment complaint are:
- Obtaining advice and guidance;
- Challenging the process;
- Challenging the allegations; and,
- Initiating ‘without prejudice’ negotiations.
There are many different approaches a person may take and there is generally no one ‘right answer’ given different people will have different priorities. In some cases, there may be multiple strands to the response, with each strand having a distinct purpose but combining to operate together.
Often the work of an employment lawyer involves assisting their client to test the credibility and reliability of the claims and sometimes engaging in ‘without prejudice’ negotiations to resolve the issue quickly.
Every case is different. So anybody seeking personalised advice about a specific situation should consult a lawyer as soon as possible, as certain options may cease to be available as time passes. Anderson Legal offers a fixed-price, no-obligation initial consultation for people facing sexual harassment allegations (learn more).
Get appropriate support
In a workplace context, people facing allegations of sexual harassment are often instructed by their employers to keep the process confidential. It can make the process feel isolating and disempowering.
Isolation and disempowerment can lead people to feel they are simply subject to the process and that the result will be what it will be. This feeling can undermine the opportunity a person has to put their best foot forward.
An experienced lawyer can help you gain a sense of support and authority.
In dealing with workplace sexual harassment complaints, it can be surprising how often employers and managers (even with the benefit of advisers), fail to afford procedural fairness, fail to comply with their own policies and procedures, or fail to take into account relevant information.
The question is: How seriously such flaws are taken by decision-makers? The answer may depend, to some degree, on the authority of the person raising the issue. For this reason, having the support and authority of a lawyer on your side can be critical.
Dr Robert Cialdini identified ‘the principle of authority’ as one of the six key principles of influence in his book, “Influence: The Psychology of Persuasion”. It describes the tendency for people to agree or comply with people seen as having authority on a subject. Numerous studies have shown the impact of the ‘principle of authority’ on decision-makers. In the Harvard Business Review, he described the essence of the authority principle in this way:
Two thousand years ago, the Roman poet Virgil offered this simple counsel to those seeking to choose correctly: “Believe an expert.” That may or may not be good advice, but as a description of what people actually do, it can’t be beaten.
So, if you are facing a workplace sexual harassment allegation, particularly one you feel to be false or unfair, getting a lawyer may assist in your voice being heard. However, the true value of a lawyer should run deeper.
The persuasiveness of the response is critical
While knowing the law is fundamental for a lawyer, so is their expertise as an advocate.
Advocacy is all about persuasion.
Persuasion leads thought and action. As such, in dealing with a workplace sexual harassment complaint, persuasiveness is a critical element in any response.
Work can be one of our defining characteristics, or at least an important part of how we perceive ourselves. So if you have been wrongly accused of sexual harassment, it is obvious that it should generally be treated as being of the utmost importance.
Experienced lawyers are able to draw on past cases where similar issues were encountered and whether particular strategies or responses were persuasive. This bank of knowledge can be drawn upon to provide expert guidance for anybody newly facing such a situation.
Anderson Legal provides legal advice to executives and employees facing workplace sexual harassment claims and investigations. Contact this firm for a confidential, fixed-price, and no-obligation initial consultation.