Harassment cases following "alarming formula": Lawyer
09 May 2011 8:06am
Workplace sexual harassment litigation is increasingly following an "alarming formula" that HR professionals should be aware of, says PCS managing principal, Joydeep Hor.
The trend is for a plaintiff or applicant law firm to make allegations "of a particularly salacious nature" against a high-profile, brand-name business or organisation, and more often than not a high-profile individual within that organisation, he told a breakfast briefing in Sydney last week.
"What we see, through the cases that are being run, is that there's a tapping into an interest that the general public has in reading about matters that they know are 'inappropriate', but everyone likes reading about them or talking about them.
"That's why sexual harassment cases sell papers. It taps into this psyche that I think human beings have, to legitimise them talking about what is otherwise an inappropriate topic of conversation."
While the same trend could occur with bullying and harassment cases, "it's the sexual harassment cases that we all know are more on page one rather than being tucked away on page nine or 10 of the papers".
The next part of the formula is the interplay between the legal case and medical advice, Hor says. "There are psychologists and psychiatrists who will be quite supportive of the legal claim that's being run. And it's not the first time that we are seeing claims that are based around medical evidence suggesting that as a result of conduct that happened... a person may be 'never able to work again', and a psychologist or psychiatrist supporting that view.
"Whether that's right or wrong, the challenge for organisations is that the judge will have to make an assessment about the validity of that advice. And the judge can only do that on the basis of what's before him or her."
This feeds into the "leverage" element of the formula, which involves, "using PR, using the salaciousness, using the fact that you're dealing with a high-profile brand, and a high-profile individual, or tapping into allegations of the culture of the organisation... to get more publicity".
"The more publicity you get, the more leverage you'll have in your settlement."
Hor says that without passing judgment on the merits - or otherwise - of cases being run in this particular way, "I can understand why it will continue to be done, and in fact it will happen more and more, because it works".
"What we need to talk about, as employers, is what can we do to protect ourselves against those claims? Or do we just have to keep dishing out the zeros on the settlement cheques?"
The "flavour of future cases", Hor says, will encompass:
allegations that employers have not taken "reasonable steps" to protect employees from harassment and unwelcome attention not just from staff, but also from clients, customers and suppliers. "That's taking things to a whole new level";
in the majority of sexual harassment cases, conduct that occurs outside of work hours. "That is probably already the case... but I have no doubt that that will be the majority of sexual harassment cases in the future";
class actions involving alleged endemic cultural issues, "driven by the suggestion that management or senior leaders knew or ought to have known about problems that existed";
the media continuing to be engaged to gain leverage in settlements;
a focus on punitive damages. "Whether [or not] Australian courts should go down that path, I think it is only a matter of time before the concept of punishment damages, in the context of discrimination and harassment, is given some support by judges.
"There are always going to be at least one or two judges who will want to express their own personally-held view, and that makes law. It will happen. It might not be a percentage of an organisation's profits, but the concept of punitive damages is very, very real";
greater scrutiny of management practices via bullying claims;
greater nexus between OHS principles, trade practices and breach of policy claims, and employment contract disputes, run in the context of discrimination and harassment claims; and
individual liability prosecutions over bullying and harassment (including board members).
"In many organisations you take OHS very seriously; your leaders, your board members have bought into that, because they get the fact that jail terms can be imposed for OHS breaches," Hor says.
"Use that as your point of leverage internally, to get greater buy-in when it comes to bullying, harassment and workplace behaviour."
Social media is one of the "difficult" areas that employers must be cognisant of when managing workplace behaviour issues, Hor told the PCS breakfast.
Social media is not "the flavour of the month", but rather a reflection of blurred boundaries in the workplace and something that "facilitates and expedites challenges in the behaviour and culture space, rather than being an issue in and of itself".
He estimates that at least half of all non-SME employers now have policies in place to cover employees' social media use, and advises the rest to "give that some serious consideration".
When dealing with social media regulation, Hor recommends that employers:
implement a written policy, "which if nothing else, shows that your organisation has turned its mind to this issue";
conduct a culture audit - "Take a step back and look at the demographics of the organisation and propensities of the workforce. Are we dealing with a workforce that actively engages in the usage of social media?"
consider infrastructure changes - some organisations approach the issue by shutting down access to "anything that's not work-related when it comes to the internet", but Hor says that is a "parent-child" way of dealing with workplace behaviour; and
educate employees - "Surely the better approach is to embrace a genuine education and respect type model, because while you can restrict what people do on work time, that's only the start".
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