Naming and claiming workplace sexual harassment in Australia.
Abstract: The persistence of sexual harassment in the workplace and the fact such behaviour remains significantly unreported suggest that legal definitions of sexual harassment may not be well understood. In this paper we explore the naming and claiming of sexual harassment in Australian workplaces, drawing on a unique dataset from a national sexual harassment prevalence survey. We compare a group of individuals who stated they had been sexually harassed according to a legal definition with a group who denied having experienced sexual harassment according to this definition but who went on to report sexually harassing behaviours. The study offers important insights into how workplace sexual harassment comes to be defined and understood in the Australian community, as well as some possible explanations for persistently low rates of formal complaints.

Keywords: sexual harassment, workplace, organisational context, gender
Article Type: Report
Subject: Sexual harassment (Analysis)
Sexual harassment (Laws, regulations and rules)
Employment discrimination (Analysis)
Employment discrimination (Laws, regulations and rules)
Sex discrimination (Analysis)
Sex discrimination (Laws, regulations and rules)
Authors: Charlesworth, Sara
McDonald, Paula
Cerise, Somali
Pub Date: 12/22/2011
Publication: Name: Australian Journal of Social Issues Publisher: Australian Council of Social Service Audience: Academic Format: Magazine/Journal Subject: Sociology and social work Copyright: COPYRIGHT 2011 Australian Council of Social Service ISSN: 0157-6321
Issue: Date: Winter, 2011 Source Volume: 46 Source Issue: 2
Topic: Event Code: 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime Advertising Code: 94 Legal/Government Regulation Computer Subject: Government regulation
Product: Product Code: 9918960 Sexual Harassment
Geographic: Geographic Scope: Australia Geographic Code: 8AUST Australia
Accession Number: 276807854
Full Text: Introduction

Working women have long endured unwelcome sexual advances and conduct in the workplace. However, it was not until the mid-1970s in the United States that sexual harassment was first legally recognised as a form of sex discrimination (MacKinnon 2007). Today, almost 50 countries prohibit sexual harassment in legislation (McCann 2005). In Australia, sexual harassment was first recognised as a form of unlawful sex discrimination in the mid-1980s (Mason & Chapman 2003) and first legislatively named as a distinct type of discrimination in the federal Sex Discrimination Act 1984 (SDA). Today anti-discrimination laws in all Australian States and Territories explicitly proscribe sexual harassment in employment and in other areas, such as in the provision of goods and services.

While there is no universal definition of sexual harassment, most anti-discrimination laws contain similar elements, including requirements that the sexually harassing conduct is unwelcome or unwanted, and has the purpose or effect of being offensive, degrading, intimidating or hostile. Laws on sexual harassment also frequently refer to the concept of vicarious liability, whereby organisations may be held legally liable unless they can establish that they took all reasonable steps to prevent the sexual harassment at issue or took action to address it after it became evident or was reported (see Markert 2005, for a cross-national comparison of sexual harassment law). Sexual harassment case law reveals additional elements that have been identified as contentious, including the extent to which the harasser could have anticipated that the conduct would be unwelcome, offensive or intimidating, 'standards of reasonableness', including from whose perspective this is considered, and whether the offensive behaviour needs to have been repeated (Mackay 2009; McDonald 2011). Importantly, legal definitions of sexual harassment are not static, but develop over time 'through both judicial and tribunal decision- making and legislative tinkering', making it 'increasingly apparent that the nature, context and harm of sexual harassment defies simplistic definition' (Mason & Chapman 2003: 224).

The lack of clarity around what constitutes sexual harassment is not only an issue for tribunals and courts. Despite the widespread legal prohibition of sexual harassment in the workplace, there is consistent evidence of significant under-reporting of the problem (Hayes 2004; Wear et al. 2007; Fielden et al. 2010), suggesting a general lack of understanding in workplaces and in the community as to where the line is drawn between acceptable and unacceptable behaviour (Charlesworth 2002; McDonald et al. 2008). The principal aim of this paper is to canvass possible explanations for the apparent reluctance of many employees to identify and name certain behaviours as sexual harassment, and where it occurs to take some action in response to it. First, we review theoretical and empirical work in two areas of the larger sexual harassment literature which are relevant to this aim--the frameworks which attempt to explain whether an experience is initially perceived as sexual harassment and the circumstances under which sexual harassment ultimately becomes a claim. We then turn to the empirical section of the paper, drawing on unpublished data from a survey undertaken by the Australian Human Rights Commission (AHRC) which identified the prevalence of sexual harassment in Australian workplaces.

Naming and claiming sexual harassment

Previous research has highlighted a number of frameworks that attempt to explain whether an experience is initially perceived as sexual harassment and if and when it ultimately becomes the subject of a claim that raises issues of sexual harassment. One useful way of understanding how sexual harassment comes to be understood is the 'naming, blaming, claiming' framework of Felstiner and colleagues (1980-1981), which is used to categorise how certain experiences are transformed into a complaint or claim. The framework identifies three key transitions; first an individual's experience is perceived as injurious (naming); it then becomes a grievance where another person or entity is held responsible for the perceived injury (blaming); and finally, the grievance is voiced to the person or entity believed to be responsible and a remedy sought (claiming). When a claim is rejected or resisted, even partly, it becomes a dispute or complaint, which may or may not be pursued in legal fora. The attrition rate at each stage in this transformative process, although rarely quantifiable, means that relatively few perceived injurious experiences ever become complaints. Studies consistently demonstrate that the number of sexually harassing incidents which are reported, either through organisational channels or to outside bodies (Firestone & Harris 2003; HREOC 2004), represent only a small proportion of those which occur in the broader community. American researchers have estimated that only between five and 30 per cent of those who experience sexual harassment file formal complaints and less than one per cent subsequently participate in legal proceedings (Fitzgerald et al. 1995; Wayte et al. 2002). In this paper our primary focus is on what factors might influence the naming of sexual harassment and whether this might affect the likelihood of reporting such experiences.

The ways in which legislative provisions and legal institutions are understood within organisations, particularly their ability to provide certain protections, rights or redress, are clearly important in the naming and claiming of sexual harassment (Parker 1999; Charlesworth 2002).The legal proscription of sexual harassment is vital as a means of redress for those who experience it. However, while such regulation and its interpretation by courts and tribunals are important, they are not the only influences on what is understood to be sexual harassment. Rather, the broader context in which sexually harassing behaviours occur is crucial to its naming. Critical to perceptions and decisions of those who experience sexual harassment at each stage of the dispute transformation process are societal attitudes towards gender roles and the place of working women, together with government policy and support for anti-discrimination legislation, and for human rights and employment institutions that administer compliance with the law. Media depictions of sexual harassment have also been identified as important for framing the problem in the broader community (McDonald 2011). Media reporting of sexual harassment has been criticised for structuring narratives and interpretations of sexual harassment as an individual aberration, rather than a more systematic problem, and for entrenching gendered assumptions that women who report sexual harassment are overly vexatious or humourless (Mahood & Littlewood 1997; Magley et al. 1999).

Research has also addressed how workplace sexual harassment is perceived, most comprehensively with respect to the gender of the target. One of the more robust conclusions in the literature is that women are less accepting than men of sexual behaviour at work and view sexually harassing behaviour as more serious (Magley & Shupe 2005; Berdahl & Moore 2006; Gallivan Nelson et al. 2007). As we explore below, this may well be because women are more likely to experience physical as opposed to non-physical forms of sexual harassment. Importantly, however, sex differences in perceptions appear to depend on the nature and frequency of sexual harassment (Osman 2007). That is, gender differences are less apparent when the attention is verbal, ambiguous or less frequent (Hurt et al. 1999). Gender differences are also less apparent when the perpetrator is a supervisor, with both men and women more readily recognising sexual harassment by a supervisor as sexual harassment than that by a peer or co-worker (Rotundo et al. 2001).

Given the likely theoretical links between perceiving conduct as injurious and seeking remedy, it is unsurprising that similar patterns emerge when considering those who report sexual harassment. The research literature suggests that individuals are more likely to report if they are female (relative to the proportion of men and women who experience the conduct), work in a larger organisation where the perpetrator is not the owner or supervisor of the business, and where the harassment is of a more severe form, such as involving requests for sexual favours (Knapp et al. 1997; Benavides-Espinoza & Cunningham 2010). Factors which inhibit reporting include fear of job loss, especially if insecurely employed, fear of retribution or retaliation, reluctance to be viewed as a victim, self- doubt or the fear of being seen as 'too sensitive', the belief that the harasser will not be disciplined, lack of knowledge of rights, and lack of accessibility of external supports (Hayes 2004; Wear et al. 2007; Fielden et al. 2010).

The perceptions and decisions discussed above are made within particular workplace contexts. For example, the presence and implementation of equal opportunity or occupational health and safety policies in organisations that name sexual harassment and provide for grievance processes all shape the perception of certain behaviours as sexual harassment (Parker 1999; McCann 2005). The workplace gender culture also influences dominant norms about what constitutes appropriate behaviour in the workplace, which in turn modifies the extent to which organisational sexual harassment policies are taken seriously (Charlesworth 2002; Wiliness 2007; McDonald & Dear 2008). Indeed, many formal complaints of sexual harassment are as much about the failure of such policies as about the actual harassment itself (Charlesworth 2006).

Many of the studies outlined above examine perceptions of sexual harassment and when it is reported, focusing on between-group differences across race, class and gender divides in a fairly static way. Other scholars, however, see individuals as actively constituting themselves and making sense of their experiences within different types of contexts in more fluid and contradictory ways (Hunter 2002, 2006; Marshall 2003, 2005). In this respect, Marshall's typology of interpretative frames of the meaning women assign to their experiences of unwanted sexual attention is particularly useful (2003). Drawing on a study of female staff members in administrative and clerical positions at a university, she argues that legal definitions alone are insufficient for understanding the meaning that women assign to their experiences of unwanted sexual attention. Marshall identifies three specific interpretive frames used by women in identifying behaviour as sexual harassment or not (2003: 667-669). These include the injustice frame, which draws on legal and feminist understandings of sexual harassment as a form of discrimination that limits a woman's ability to participate in the workplace on an equal footing with men. The second is the management frame, which draws on the risk of legal liability for employers, viewing sexual harassment as a harm to the organisation and emphasising the overlap between employees wanting to protect their career and employers wanting to protect their business. The third interpretive frame is sexual freedom, which draws both on feminist concerns about the use of state power to regulate women's sexuality and on more conservative views that legal regulation creates impermissible limitations on freedom of speech.

In this paper, we take up the issue of what behaviour is understood as sexual harassment, and for whom, in our analysis of data from the 2008 Australian Human Rights Commission sexual harassment prevalence survey. Our study extends existing work in several important ways. Firstly, previous work which has addressed how targets of sexual harassment perceive or understand sexually harassing conduct is largely derived from samples employed in a specific organisation or industry, particularly military settings (for example, Faley et al. 1999; Firestone & Harris 2003; Magley & Shupe 2005), thereby limiting the findings to certain groups within particular workplace contexts. Secondly, while other studies have explored the way in which individuals understand, label or perceive sexual harassment according to discrete personal, organisational and/or stimulus variables (for example, Golden et al. 2001; Osman 2007), and others have addressed the circumstances under which sexual harassment is reported (for example, Bergman et al 2002; Madera et al. 2007), few have explicitly linked the two phenomena (see Balogh et al. 2003 for an exception). Thirdly, the vast majority of empirical work on understandings of sexual harassment, as with the broader literature in the field, has been written from a US perspective and hence must be considered in the light of the political, legal and cultural context of that particular country. In contrast, our Australian-based study uses data from a prevalence survey conducted by the national human rights agency, involving respondents who were representative of the Australian population by age, gender and area of residence. Population-based studies of this kind are rarely conducted owing to the resources required.

Finally, the data set offers a unique opportunity to contrast patterns of reporting across two distinct groups of respondents--those who stated they had been sexually harassed according to the legal definition in the SDA, and those who denied having experienced sexual harassment according to this definition, but who went on to report behaviours that may well constitute sexual harassment. To the best of our knowledge, no previous work has explored sexual harassment phenomena along this dimension and our approach allows for an explicit focus on what factors might shape these different understandings of sexual harassment.

In the next section we outline the survey method employed in the AHRC prevalence study and our analytic strategy. In the following sections we draw on an analysis of unpublished data from the survey to explore a number of factors that may shape understandings of what constitutes sexual harassment in the workplace and offer some explanations for the low rate of formal complaints.

Methods

The 2008 Sexual Harassment Prevalence Survey

A national random telephone survey was conducted by the AHRC between July and September 2008 to investigate the nature and the extent of sexual harassment in Australian workplaces (AHRC 2008). The survey was conducted with 2,005 individuals aged 18 to 64 years who were representative of the Australian population in terms of age, gender and area of residence. The survey was conducted in two waves. The first wave of the survey was conducted with a sample of 1005 people, replicating the questions in an earlier survey undertaken by the AHRC in 2003 to enable a comparison of changes in prevalence over time. However, further research on sexual harassment survey methodologies undertaken by the Commission since the 2003 survey had indicated that additional questions based on specific behaviours, rather than legal definitions that require the respondent to make a judgement about the kinds of behaviours that a lawyer or court might regard as constituting sexual harassment, were likely to provide a more realistic incidence of sexual harassment (AHRC 2008: 36). This is because questions based on a legal definition of sexual harassment may lead to under-reporting of the incidence of sexual harassment, while questions that specify the behaviours are less reliant on a person's own understanding of sexual harassment (see Illies et al. 2003). Thus in the second wave of the survey conducted in September 2008 with another 1000 respondents, respondents who said they had not been sexually harassed according to the legal definition were then asked whether they had experienced these behaviours in the workplace or at work-related events in the last five years in a way that they felt was unwelcome (AHRC 2008: 36). There were no significant differences between the respondents in waves 1 and 2 with respect to age, gender, occupation, or industry. (1)

In both waves respondents were asked if they had experienced sexual harassment based on the SDA definition of sexual harassment, which was read out to them. Section 28A(1) of the SDA provides that:

As noted above, wave 2 respondents who said they had not experienced workplace harassment in the last five years were asked whether they experienced a range of specific behaviours that are likely to constitute sexual harassment, such as unwelcome touching, hugging, cornering or kissing; sexually explicit emails or SMS messages; and sexually suggestive comments or jokes. (These questions were also asked of wave 1 and wave 2 respondents who had indicated that they had experienced sexual harassment in response to the legal definition in order to identify the nature of the sexual harassment experienced.)

In our analysis of the AHRC 2008 survey data, we focus on two sub-samples of a total of 298 individuals who reported experiencing sexual harassment in the workplace or at a work-related event in the previous five years. A randomly selected 226 individuals in this group participated in a longer telephone interview, which is the source of data for our study. This interview sought information about the nature of the sexual harassment and responses to it, as well as a number of workplace characteristics at the time of the sexual harassment. This sample includes the 76 individuals (57 women and 19 men) who reported that they had experienced sexual harassment in the workplace after being read the SDA definition of sexual harassment (the legal definition group) and the 150 individuals (95 women and 55 men) who stated they had not experienced workplace sexual harassment but who went on to report they had experienced one or more of what can be constituted as sexually harassing behaviours (the behavioural definition group). While the overall numbers are small, the AHRC data offer a unique opportunity to explore some factors that may explain a reluctance to name and claim sexual harassment where it occurs. It also allows us to consider possible explanations for different understandings of what might constitute sexual harassment and whether these affect the likelihood of it being reported. In our analysis we use frequencies for categorical data and means for continuous data. In testing for statistical significance in differences between groups, we performed chi-square tests for categorical data and t-tests for continuous data.

Results

Naming sexual harassment

Naming is the point at which an individual decides whether an experience was harmful and whether it was sexual harassment (Marshall 2003: 665). So why do some people view some behaviours as sexual harassment while others do not? Table 1 sets out selected demographic and employment characteristics of the two groups of respondents on which our study is focused: the 'legal definition group' and the 'behavioural definition group'. (2)

While there are some small and interesting differences between the legal and behavioural definition groups in terms of gender breakdown, workplace size and aggregate industry, and occupational groupings, these differences were not statistically significant. (3) One of the important differences between the legal definition and behavioural definition groups was in employment tenure at the time of the harassment. Those who reported sexual harassment according to the legal definition were much more likely to have been employed for a shorter period of time when the harassment occurred than those in the behavioural definition group (p = .043). For example, 46 per cent of the legal definition group had been employed for less than 12 months, compared with 19 per cent of the behavioural definition group. This might suggest a greater tolerance for sexualised behaviour among those who had been in the workplace for a longer period of time and who consequently did not identify the unwelcome or inappropriate sexual behaviour they experienced as sexual harassment according to the legal definition. As highlighted below, the perceptions of behaviour which may constitute sexual harassment as more normative amongst employees of longer tenure may also be related to perceptions of the behaviours as less serious--both in terms of the nature of the sexual harassment itself and the level of intimidation and offence it caused.

Type of harassment

Of the AHRC survey respondents who reported they had been sexually harassed or experienced sexually harassing behaviours, 69 per cent reported non-physical harassment and 31 per cent reported physical types of sexual harassment. The most frequently reported non-physical harassment was 'sexually suggestive comments or jokes that make you feel offended', which was reported by 56 per cent of respondents, with 42 per cent of respondents reporting being subjected to 'intrusive questions about your private life or physical appearance that made you feel offended' (AHRC 2008: 19). Our analysis indicates that the legal definition group were far more likely to describe physical forms of sexual harassment (52.6 per cent), such as 'unwelcome touching, hugging, cornering and kissing', compared with the behavioural definition group (17.3 per cent) (p = .000). This suggests that while the legal definition of sexual harassment anticipates both physical and non-physical harassment, individuals might draw a line between sexual harassment and other unwelcome workplace behaviours on the basis of whether these behaviours are physical or not. We note, however, that three individuals in each of the two groups reported that they had experienced actual or attempted rape or assault. The fact that three individuals in the behavioural definition group did not report attempted rape or assault as sexual harassment according to its legal definition may be because they understood such behaviour as criminal assault rather than as (only) sexual harassment. Such blurring of criminal and civil definitions of negative workplace behaviours suggests that the line between what is sexual harassment and what it is not can be stretched in both directions.

While there are some gender differences in the frequency with which physical compared with non-physical sexual harassment is reported by individuals in the legal and behavioural definition groups, the trends are similar. Both male and female respondents in the legal definition group were significantly more likely to report physical forms of sexually harassing behaviours than those in the behavioural definition group (for men, 47.4 per cent in the legal definition group compared with 14.5 per cent in the behavioural definition group, p = .006; for women, 54.4 per cent in the legal definition group compared with 18.9 per cent in the behavioural definition group, p = .000).

Levels of offence and intimidation

Several studies suggests that it is not only the type of unwelcome behaviour that may makes a difference to whether such behaviour is seen as sexual harassment but also the level of intimidation and offence that is experienced (Marshall 2003, 2005; McDonald et al. 2008; Berdahl & Aquino 2009). Both these elements are central to the legal definition of sexual harassment under the SDA.

Respondents were asked to report on a five-point Likert scale how offended ('not offended at all' to 'extremely offended') and how intimidated ('not at all intimidated' to 'extremely intimidated') they felt in response to the sexual harassment or sexually harassing behaviours they reported. There were some differences between the two groups in terms of the level of offence they felt. Of the legal definition group, almost half (47.4 per cent) reported that they had been very or extremely offended, compared with 37.3 per cent of the behavioural definition group. A larger proportion of the behavioural definition group reported that they had only been mildly offended or not offended at all (36.7 per cent), compared with the legal definition group (19.5 per cent). As set out in Table 2, mean scores for the level of offence experienced was higher for those in the legal definition group (3.46) than for the behavioural definition group (3.12). However, these differences were not statistically significant. This suggests that being offended may not be enough to identify unwelcome sexual conduct as sexual harassment. Such an analysis is supported by Marshall's study, which found that even where women were offended by the behaviour, they tended to use an external standard that resembled the legal definition of sexual harassment to gauge whether such behaviours were sexual harassment or not (2003: 685).

However, the legal definition group reported significantly higher levels of intimidation than those in the behavioural definition group (p = .006), which suggests that feeling frightened might be an important factor in labelling behaviour as sexual harassment. Nevertheless, over one-third of the behavioural group, who had specifically rejected the legal label of sexual harassment, reported being very or extremely intimidated by the behaviour in question. Thus the fact that unwelcome sexual workplace conduct is perceived as highly intimidating does not mean that it is necessarily seen as fitting a legal framing of sexual harassment. Paradoxically, more than one-third of the legal definition group reported being only mildly or not at all intimidated by the sexual harassment they reported. This suggests that while the level of intimidation may have an effect on the naming of sexual harassment for some individuals, it may be only one factor among many that influence what is seen to constitute sexual harassment from the point of view of employees.

Within the behavioural definition group, women reported a significantly higher level of intimidation than men (2.81 compared with 2.05; p = .002). This suggests some gender differences in the emotional responses to, and perceptions of, the nature and seriousness of the reported behaviours, whether or not they are named as legally defined sexual harassment. This finding is consistent with a number of studies, as we have noted above, that have found women are less accepting than men of sexual behaviour at work and view gender harassment, unwanted sexual attention and sexual coercion as more serious. However, it is not only a lower tolerance for sexual harassment and a perception that it is serious that accounts for such gender differences. It is also, as the AHRC survey demonstrates, that women are more likely to report being subjected to physical forms of sexual harassment than men, with 35 per cent of female respondents reporting physical harassment compared to 25 per cent of male respondents (AHRC 2008: 19).

However, as Marshall's work suggests, coming to frame behaviour or behaviours as sexual harassment depends on factors apart from the actual behaviour, including those to do with the organisational context. While we found that there was no significant difference in the employment status, occupational groupings, industry gender composition and the size of workplace between the two groups, other factors that hint at dominant workplace norms may also lead an individual more towards an interpretive frame that enables the naming of certain behaviours as sexual harassment. Using questions addressing the frequency, pervasiveness and characteristics of the harassment in the AHRC 2008 survey, we found there were no significant differences between the legal definition and behavioural groups in terms of how rare the behaviour was in their workplace, the likelihood that the behaviour had happened to someone else, or the gender of the harasser (although women in both groups were much more likely than their male counterparts to say that their harasser was male). However, there were significant differences between the two groups in respect of their relationship to the harasser. Those in the legal definition group were twice as likely to say the harasser had been in a more senior position, as their employer, boss, supervisor, manager, or as more senior co-worker (42.2 per cent) than those in the behavioural group (20.3 per cent) (p = .042).

This suggests that one of the popular understandings of sexual harassment as 'quid pro quo harassment'--where harassment is accompanied by an employment threat or benefit typically from someone in a more powerful or senior position than the victim--remains important in naming sexual harassment as such, despite this not being a requirement of most legal definitions of sexual harassment. This finding is in line with other research which indicates that men and women are more likely to agree that conduct is sexual harassment when the perpetrator is a supervisor than when they are peers or co-workers (for example, Rotundo et al. 2001). Much of the Australian and international media focus on sexual harassment tends to be on those cases involving large power differentials, which works both to reinforce the idea that this is what constitutes 'real' sexual harassment and to make sexual harassment by co-workers less visible.

Linking naming to claiming

In the dispute transformation process, claiming occurs when someone with a grievance makes a complaint, formal or otherwise, to the person or persons seen as responsible or accountable for the detriment, and asks for some remedy (Felstiner et al. 1980-1981: 635). The 2008 AHRC survey results highlighted a very low rate of claiming or formal reporting of workplace sexual harassment, whether legally defined or not. Only 16 per cent of the 2008 survey respondents (19 per cent of women and nine per cent of men) who had experienced sexual harassment in the workplace in the last five years went on to report it formally to their managers, employers or other bodies. The AHRC speculated that possible explanations for this gender difference were that women are more likely to be intimidated or offended by the harassment compared with men and, as noted above, that women were also more likely to have experienced physical types of sexual harassment that may be seen as more serious (2008: 19).

Given that the legal definition group had named sexual harassment as such, we might expect that they would be more likely to make a formal report. However, we found no significant differences between the two groups. We note, however, that the total numbers of those making a report are small (total n=36, including 15 in the legal definition group and 21 in the behavioural definition group), so the results should be interpreted with caution. What does seem to make a difference to whether individuals in either group made a formal report or complaint is the level of offence and intimidation experienced. As set out in Table 3, those in the legal definition group who made a formal report were significantly more likely to be offended by the behaviour than those who did not make such a report (4.20 compared with 3.28; p = .008). Similarly, those in the behavioural definition group who made a formal report were significantly more likely to be offended by the behaviour than those who did not make such a report (3.90 compared with 2.99; p = .004). This is an interesting finding as there was no significant difference in the level of offence experienced by the two groups in relation to the actual behaviour, as noted above.

Similar extrapolations can be drawn from findings on how the level of intimidation affected decisions on whether to make a formal report. As indicated in Table 3, we found that those in the legal definition group who made a formal report were more likely to be intimidated by the behaviour than those who did not make such a report (3.67 compared with 2.99). While this difference was not significant, the trend was in the same direction as findings which indicated significant differences in the levels of intimidation experienced by those in the behavioural definition group who made a formal report and those who did not (3.24 compared with 2.43; p = .017). These findings suggest, firstly, that decisions to make a report or to pursue a formal complaint are independent of how the behaviours are framed by those experiencing them. Secondly, they suggest that there is a behavioural threshold (experienced as affective reactions such as intimidation and/or offence) that has to be crossed before most individuals will make a formal report, whether or not they have framed that behaviour as sexual harassment according to the legal definition.

Respondents who did not make a formal report or complaint of sexual harassment were asked to provide the reasons they had not done so and their free text responses were coded (AHRC 2008: 46). The two most common reasons for not making a formal report offered by both groups of respondents was that the behaviour was not serious enough (40.4 per cent of the legal definition groups and 45.3 per cent of the behavioural definition group) and that they took care of the problem themselves (28.1 per cent of the legal definition groups and 30.5 per cent of the behavioural definition group). There was no significant difference between the responses of the two groups in this respect. Cortina and Magley point to the fear of repercussions targets may experience in terms of social retaliation from co-workers and work-related victimisation where the harassment was by powerful perpetrators (2003), which may well underpin reluctance to make a report or complaint. However, in the AHRC prevalence survey very few respondents in either group acknowledged such possible reasons for not reporting the sexual harassment, with only 11.5 per cent of the legal definition group and 7.8 per cent of the behavioural definition group reporting any fear of negative repercussions.

However, it is important to caution against assuming that those who decide not to pursue a claim in respect to sexual harassment necessarily acquiesce to, or accept, the behaviours they have experienced. Both the legal and behavioural definition groups were asked whether they had sought any informal support or advice about the harassment that happened to them. Those in the legal definition group were significantly more likely to have indicated that they had sought informal support or advice (40.8 per cent) than those in the behavioural definition group (24.0 per cent) (p = .013). Previous British research has found that those who do complain of such discrimination have typically reached a point where the workplace disadvantages or detriment they have experienced are sufficient to threaten or preclude their ongoing employment (Conaghan 2004). While there are few studies of male experiences, studies focused on women suggest that those who experience sexual harassment often do not report it because fears about career advancement cause them to minimise the harm they have experienced and thus internalise their employer's concerns about the risk to the organisation if a complaint is made (Charlesworth 2002; Marshall 2003). For other women, sexual expression at work can be a source of bonding and so they may tolerate the sexual conduct, even where they find it uncomfortable. However there is recent evidence that exposure to sexual behaviour at work is linked with negative employee work and psychological well-being, even for the men and women who report enjoying the experience (Berdahl & Aquino 2009).

The literature suggests that rather than formally reporting sexual harassment, those who are targeted more typically deal with the problem in isolation, with the assistance of friends or co-workers, or by tolerating the behaviours, leaving the organisation or resisting in other 'informal' ways (Cairns 1997; McDonald et al. 2010). For example, in an in-depth interview study which explored targets' decision-making in reporting sexual harassment, Wear and colleagues (2007: 23) observed that medical students declined to 'make waves' or 'raise a stir', but rather used passive or avoidance responses such as standing further away from colleagues who touched them, requesting shifts on which the harassers were not working, and avoiding situations where offensive and intimidating encounters were likely to occur.

While this analysis of the AHRC survey data is limited to static comparisons between the legal and behavioural groups, the differences and similarities between the two groups suggest that, in line with findings from qualitative workplace studies noted above, individuals may balance several competing understandings of sexual behaviour at work. For example, as Marshall notes, even those familiar with the injustice frame may feel responsible for the sexual conduct or decide that the behaviours are just not serious enough to report or complain about. Deciding not to report sexually harassing behaviours may also reflect the 'blow it off' or 'suck it up' attitude of women who wish to negotiate the world differently to previous generations (Marshall 2003; Wear et al. 2007;). Such individualised, rather than collective or institutional, responses to sexual harassment were evident in the number of respondents who indicated they had dealt with the problem themselves. Put another way, non-reporting may reflect attempts by some women to actively constitute themselves as non-gendered, non-embodied subjects, disavowing their femininity and any disadvantages flowing from it (Hunter 2002; 2006), particularly where they want to be taken seriously in the workplace. But while such strategies can help women to survive in male-dominated workplaces, they do not challenge the practices of discrimination such as sexual harassment (Marshall 2005; Hunter 2006). Moreover, as Thornton (2002) notes, although those who make formal complaints may have the satisfaction of eventually being told they are in the right, they are unlikely ever to win more than a pyrrhic victory against their employer and their careers may have been seriously damaged in the process.

There are a number of limitations of the AHRC 2008 survey and indeed to our analysis. The first set of limitations relates to the representativeness of the prevalence survey along a number of important dimensions. Recognised restrictions of telephone surveys are that they under-represent individuals from culturally and linguistically diverse backgrounds, as well as those with disabilities, those from lower socio-economic backgrounds and younger people who may not have a household telephone. The survey also excluded people under the age of 18 years because interviewing minors required consent from a parent or guardian (AHRC 2008: 39). These limits are problematic in the sense that they may exclude those from population groups who have been shown to be particularly vulnerable to sexual harassment, such as young women and men, women with precarious working conditions, women with disabilities and women from ethnic minorities (McCann 2005; Chamberlain et al. 2008; McDonald & Dear 2008).

The second set of limitation relates to the survey data itself and our analysis of it. While the AHRC survey enabled an Australia-wide assessment to be made of the prevalence of sexual harassment across Australian workplaces, our analysis is restricted by the questions asked in the survey relating to the characteristics and circumstances of those who reported sexual harassment or sexually harassing behaviours. It is also limited by the small numbers in our two sub-samples, the legal definition group and the behavioural definition group, which precludes any meaningful analysis of differences across industry, organisational size and indeed different organisational contexts, such as male-dominated and female-dominated workplaces. These small numbers also make it problematic to undertake any multivariate analysis to test the significance of the associations between the characteristics and circumstances of those in our two sub-samples. This is particularly an issue with testing any association between naming and claiming, as only a total of 36 respondents had actually reported harassment. Nevertheless, the sample and methodology used in our analysis offer important insights into how workplace sexual harassment is defined and understood in the Australian context and whether these understandings might influence the likelihood of reporting sexual harassment where it occurs.

Conclusion

There have been a number of Australian studies on sexual harassment case law and on the in-house and external grievance mechanisms that may be used by those who experience workplace sexual harassment. While important, few of these studies move beyond a legal or injustice framing of sexual harassment. What this analysis of unpublished data from the AHRC 2008 survey offers is a chance to consider some of the reasons why sexual harassment continues to be a workplace issue in Australia despite its explicit legal prohibition. One of the most crucial is the limited and confused understandings of sexual harassment. It would appear that for many employees and workplaces a far narrower definition of sexual harassment than exists in most legislation is used as a benchmark for deciding when and whether certain sexualised behaviours are sexual harassment. Thus factors such as whether the behaviour is physical or non-physical, the extent to which the individual finds the behaviour intimidating, and whether the harasser is higher up the organisational hierarchy than the individual harassed, can work to shape the identification and naming of sexual harassment.

However, being able to name sexual harassment does not necessarily mean that an individual will make a formal complaint or report. As the AHRC study shows, reporting rates in Australia remain very low, which is consistent with many other international studies (McCann 2005). Two factors identified in the AHRC study which might shape whether an individual makes a formal complaint, irrespective of whether or not the sexually harassing behaviour is named as such, are the level of offence and intimidation experienced. Whether such judgments and decisions about naming and claiming sexual harassment reflect the use of injustice, management or sexual freedom frames, or a mixture of all three, is uncertain from the survey data. There is clearly a need for more Australian research studies, in line with Marshall's and Hunter's in-depth qualitative studies, that can pick up the ways in which competing frames may operate contemporaneously despite the inherent contradictions between them. Indeed, while sexual harassment is overwhelmingly perpetrated by men against women, given the increasing number of men who are sexually harassed (McDonald 2011), one useful direction for future research would be to explore the different ways and the contexts within which men frame the sexual harassing behaviours they may experience.

What our findings do suggest, however, is that there is a need for renewed attempts to address and prevent sexual harassment both within organisations and by governments. Clearly responsive and effective legal frameworks and complaint-handling procedures are crucial. In response to the 2008 recommendations made by the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the effectiveness of the Sex Discrimination Act 1984, the Australian Government has recently amended the SDA to broaden the definition and reach of the sexual harassment provisions. However, better legal definitions of sexual harassment provisions are only part of ensuring the prevention of sexual harassment and the protection of those who have been sexually harassed, as our analysis has demonstrated. One of the main flaws of the current management of sexual harassment complaints by human rights bodies is the focus on individual complaints and the individual complainant. This means that sexual harassment is seen as an individual problem and, in many instances, a problem between individuals, with little to do with broader organisational practices and norms. Legislative developments in the state of Victoria with the enactment of the Equal Opportunity Act 2010 suggest an alternative approach. The new Act, which provides for positive action and the investigation of systemic discrimination without the need for individual complaints, may work to shape framings of sexual harassment as a broader social and organisational issue.

Within organisations, workplace culture and practice remains central. Studies of sexual harassment suggest that employee perceptions of organisational tolerance of sexual harassment and the action taken in response to it are related to the frequency of sexual harassment incidents and to organisational effectiveness in both preventing and addressing sexual harassment where it occurs (Miner-Rubino & Cortina 2004; Gallivan Nelson et al. 2007). That is, employee perceptions of organisational tolerance are more important in shaping the attitudes and behaviours of employees than the presence or absence of formal organisational policies (Hulin et al. 1996). Our analysis of the 2008 AHRC data also suggests that there is a need for more proactive leadership in workplaces in shifting the burden of identifying unprofessional behaviour from the (more vulnerable) individual to the institution itself (Wear et al. 2007). To that end Wear and colleagues (2007) suggest institution-wide conversations, beyond the limits of formal policies, are necessary to determine how sexual harassment is defined (legally, ethically, institutionally and personally) in the workplace, how it should be addressed and the implications for ignoring or normalising it. If the lines between appropriate and inappropriate behaviours, including sexual harassment, were openly discussed, it may make it easier for both managers and employees to identify and name unacceptable behaviour. Likewise, using workplace culture surveys to identify issues that may contribute to unwelcome sexual conduct and sexually permeated workplaces might work to alert managers to problem areas without formal complaints having to be made by a few brave individuals. This is particularly important in the context of new technologies and the increasing overlap between private and work lives.

Acknowledgements

This paper draws on research conducted as part of an Australian Research Council Discovery grant (DP1093442). We would like to thank the Australian Human Rights Commission for providing us with access to the dataset from the 2008 Sexual Harassment Prevalence Survey. We remain solely responsible for the analysis of this data and the views expressed in the paper. We are also grateful to the journal's anonymous referees and editors for helpful feedback on earlier drafts of this paper.

References

Australian Bureau of Statistics (ABS) (2008) Labour Force, Australia, Cat. No.6202.0.

Australian Human Rights Commission [AHRC] (2008) Sexual Harassment: Serious Business. Results of the 2008 Sexual Harassment National Telephone Survey, Australian Human Rights Commission, Sydney, October.

Balogh, D., Kite, M., Pickel, K., Canel, D. & Schroeder, J. (2003) 'The effects of delayed report and motive for reporting on perceptions of sexual harassment', Sex Roles, 48 (7/8), 337-348.

Benavides-Espinoza, C. & Cunningham, G. (2010) 'Observers' reporting of sexual harassment: the influence of harassment type, organizational culture and political orientation', Public Organization Review, 10 (4) 1-15.

Berdahl, J.L & Aquino, K. (2009) 'Sexual behavior at work: fun or folly?', Journal of Applied Psychology, 94(1) 34-47.

Berdahl, J. & Moore, C. (2006) 'Workplace harassment: double jeopardy for minority women', Journal of Applied Psychology, 91 (2), 426-436.

Bergman, M., Langhout, R., Palmieri, P., Cortina, L. & Fitzgerald, L. (2002) 'The (un)reasonableness of reporting: antecedents and consequences of reporting sexual harassment', Journal of Applied Psychology, 87 (2), 230-242.

Cairns, K. (1997) '"Femininity" and women's silence in response to sexual harassment and coercion', in A. Thomas & C. Kitzinger (eds) Sexual Harassment: Contemporary Feminist Perspectives, Buckingham, Open University Press, 110-124.

Chamberlain, L., Crowley, M. Tope, D. & Hodson, R. (2008) 'Sexual harassment in organizational context', Work and Occupations, 35 (3), 262-295.

Charlesworth, S. (2006) 'A snapshot of sex discrimination in employment: disputes and understandings', in S. Charlesworth, K. Douglas, M. Fastenau & S. Cartwright (eds), Women and Work 2005: Current RMIT University Research, Melbourne, RMIT Publishing, 81-98.

Charlesworth, S. (2002) 'Risky business: managing sexual harassment at work', Griffith Law Review, 11 (2), 353-376.

Conaghan, J. (2004) 'Women, work and family: a British revolution?' in J. Conaghan, R. Risch & K. Klare (eds), Labour Law in an Era of Globalisation: Transformative practices and possibilities, Oxford, Oxford University Press, 53-74.

Faley, R., Knapp, D., Kustis, G. & Dubois, C. (1999) 'Estimating the organizational costs of sexual harassment: the case of the U.S. Army', Journal of Business and Psychology, 13 (4), 461-484.

Felstiner, W., Abel, R. & Sarat, A. (1980-1981) 'The emergence and transformation of disputes: naming, blaming, claiming ...', Law & Society Review, 15 (3/4), 631-654.

Fielden, S., Davidson, M., Woolnough, H. & Hunt. C. (2010) 'A model of racialized sexual harassment of women in the UK workplace', Sex Roles, 62 (1/2), 20-34.

Firestone, J. & Harris, R. (2003) 'Perceptions of effectiveness of responses to sexual harassment in the US military, 1988 and 1995', Gender, Work and Organization, 10 (1), 42-64.

Fitzgerald, L., Swan, S. & Fischer, K. (1995) 'Why didn't she just report him? The psychological and legal implications of women's responses to sexual harassment', Journal of Social Issues, 51 (1), 117-138.

Gallivan Nelson, C., Halpert, J.U. & Cellar, D. (2007) 'Organizational responses for preventing and stopping sexual harassment: effective deterrents or continued endurance?', Sex Roles, 56 (11/12), 811-822.

Golden, J., Johnson, C. & Lopez, R. (2001) 'Sexual harassment in the workplace: exploring the effects of physical attractiveness on perception of harassment', Sex Roles, 45 (11/12), 767-784.

Hayes, P. (2004) Taking it seriously: contemporary experiences of sexual harassment in the workplace, Research Report, Working Against Sexual Harassment, Melbourne.

Hulin, C., Fitzgerald, L. & Drasgow, F. (1996) 'Organizational influences on sexual harassment', in M. Stockdale (ed.) Sexual Harassment in the Workplace: Perspectives, Frontiers and Response Strategies, Thousand Oaks, CA: Sage, 127-150.

HREOC (Human Rights and Equal Opportunity Commission) (2004) 20 Years On: The Challenge Continues--Sexual Harassment in the Australian Workplace, Sydney, Human Rights and Equal Opportunity Commission.

Hunter, R. (2002) 'Talking up equality: women barristers and the denial of discrimination', Feminist Legal Studies, 10 (2), 113-130.--(2006) 'Discrimination in IT organisations', Labour & Industry, 16 (3), 91-108.

Hurt, J., Maver, J. & Hofmann, D. (1999) 'Situational and individual influences on judgments of hostile environment sexual harassment', Journal of Applied Social Psychology, 29 (7), 1395-1415.

Illies, R., Hauserman, N., Schwochau, S. & Stibal, J. (2003) 'Reported incidence rates of work-related sexual harassment in the United States: using meta-analysis to explain reported rate disparities', Personnel Psychology, 56 (3), 607-618.

Job Watch (2004) Sexual harassment in employment--workers still exposed, Melbourne, Job Watch.

Knapp, D., Faley, R., Ekeberg, S. & Dubois, L. (1997) 'Determinants of target responses to sexual harassment: a conceptual framework', Academy of Management Review, 22 (3), 687-729.

Mackay, A. (2009) 'Recent developments in sexual harassment law: towards a new model', Deakin Law Review, 14 (2), 189-217.

MacKinnon, C. (2007) 'Directions in sexual harassment law', Nova Law Review, 31 (20), 225-36.

Madera, J., Podratz, K., King, E. & Hebl, M. (2007) 'Schematic responses to sexual harassment complainants: the influence of gender and physical attractiveness', Sex Roles, 56 (3/4), 223-230.

Magley, V. & Shupe, E. (2005) 'Self-labeling sexual harassment', Sex Roles 53 (3/4) 173-189.

Magley, V., Hulin, C. Fitzgerald, L. & DeNardo, M. (1999) 'Outcomes of self-labeling sexual harassment', Journal of Applied Psychology, 84 (3), 390-402.

Mahood, L. & Littlewood, B. (1997) 'Daughters in danger: the case of "campus sex crimes"', in A. Thomas & C. Kitzinger (eds), Sexual Harassment: Contemporary Feminist Perspectives. Buckingham, UK, Open University Press, 157-171.

Marshall A-M. (2003) 'Injustice frames, legality, and the everyday construction of sexual harassment', Law & Social Inquiry, 28 (3), 659-689.

--(2005) 'Idle rights: employees' rights consciousness and the construction of sexual harassment', Law & Society Review, 39 (1), 83-123.

Markert, J. (2005) 'The globalization of sexual harassment', Advances in Gender Research, 9, 133-160.

Mason, G. & Chapman, A. (2003) 'Defining sexual harassment: a history of the Commonwealth legislation and its critiques', Federal Law Review, 31 (1), 195-224.

McCabe, M. & Hardman, L. (2005) 'Attitudes and perceptions of workers to sexual harassment', The Journal of Social Psychology, 145(6), 719-740.

McCann, D. (2005) Sexual Harassment at Work: National and International Responses, Geneva, International Labour Office.

McDonald, P. (2011) 'Workplace sexual harassment 30 years on: a review of the literature', International Journal of Management Reviews, doi: 10.1111/j.1 468-2370.2011.00300.x

McDonald, P. & Dear, K. (2008) 'Discrimination and harassment affecting working women: evidence from Australia', Women's Studies Journal, 22 (1/2), 37-48.

McDonald, P., Backstrom, S. & Dear, K. (2008) 'Reporting sexual harassment: claims and remedies', Asia Pacific Journal of Human Resources, 46 (2), 173-195.

Miner-Rubino, K. & Cortina, L. (2007) 'Beyond targets: Consequences of vicarious exposure to misogyny at work', Journal of Applied Psychology, 92 (5), 1254-1269.

Osman, S. (2007) 'The continuation of perpetrator behaviours that influence perceptions of sexual harassment', Sex Roles, 56 (1/2), 63-69.

Parker, C. (1999) 'Public rights in private government: corporate compliance with sexual harassment legislation', Australian Journal of Human Rights, 5 (1), 159.

Rotundo, M., Nguyen, D. & Sackett, P. (2001) 'A meta-analytic review of gender differences in perceptions of sexual harassment', Journal of Applied Psychology, 86 (5), 914-922.

Thornton, M. (2002) 'Sexual harassment losing sight of sex discrimination', Melbourne University Law Review, 26 (2), 422-444.

Wayte, T., Samra, J., Robbennolt, J.K., Heuer, L. & Koch, W.J. (2002) 'Psychological issues in civil law', in J.R.P. Ogloff (ed.) Taking Psychology and Law into the Twenty-first Century. New York, Springer, 323-369.

Wear, D., Aultman, J. & Borgers, N. (2007) 'Retheorising sexual harassment in medical education: women students' perceptions at five US medical schools', Teaching and Learning in Medicine, 19(1), 20-29.

Wiliness, C., Steel, P. & Lee, K. (2007) 'A meta-analysis of the antecedents and consequences of workplace sexual harassment', Personnel Psychology, 60 (1), 127-162.

Endnotes

(1.) Based on unpublished analysis by Market Focus International, the company that ran the 2008 AHRC survey, provided to the authors by the AHRC.

(2.) We are not able to compare the characteristics of these two groups in terms of their demographic and workplace characteristics with the overall sample of 2005 respondents as age, gender and place of residence were the only variables collected for all respondents. Further, the sample included 501 respondents (25 per cent of the total sample) who were not employed at the time of the survey.

(3.) We were unable to calculate the mean age at the time of the harassment as there was missing data for all but 33 of the behavioral definition group. However as highlighted in Table 1 the mean age of both groups at the time of the survey were significantly different (p = .000) with those in the behavioral group on average seven years older than those in the legal definition group. Nevertheless, given the relevant questions of the two groups related to sexual harassment in the workplace in the last five years, it is difficult to interpret age differences between the two groups with any confidence.
... a person sexually harasses another person (the person
   harassed) if: Ca) the person makes an unwelcome sexual advance,
   or an unwelcome request for sexual favours, to the person
   harassed; or (b) 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 that the person harassed
   would be offended, humiliated or intimidated.


Table 1: Selected demographic and employment characteristics of
legal and behavioural definition groups
                                   Legal
                                   definition       Behavioural
Selected Characteristics           group            definition
                                   (n=76)           group (n=150)

Sex
Male                               25               37
Female                             5                63
Age (years) (^)                    38.17 SD 10.94   45.16 SD 12.03
Workplace size *
Small (<25 employees)              28               33
Medium-sized (25-100 employees)    32               29
Large (>100 employees)             41               38
Full or part-time status *
Full-time                          68               68
Part-time                          32               3
Employment status *
Permanent                          76               79
Casual/temporary                   24               21
Time working for employer *
Less than 3 months                 12               11
3 months or more but less          34               18
 than 12 months
12 months or more but less         24               27
 than 3 years
3 or more years                    30               43

Gender composition of
industry (~) *

Female-dominated                   25               27
Male-dominated                     29               40
Mixed                              45               31

Occupational groups
([section]) ([section]) *

Manager                            9                17
Professional/white collar          32               34
Blue collar                        26               14
Pink collar                        32               9

* At time of harassment

(^) At time of survey

(~) Male, female, and mixed industries are defined by the sex
composition of employed persons within each industry as at August
2008  (ABS 2008). Male and female dominated industries are those
in which 60 per cent of employees are men or women respectively.
Mixed  industries are those in which women and men constitute
between 41 percent and 59 percent of employed persons. Three
individuals did  not provide industry details, thus n = 223 (99
percent).

([section]) These occupational groupings are aggregations of the
occupational categories used in the AHRC 2008 survey. Four
individuals did not  provide occupation details, thus n = 222
(98 percent).

Table 2: Level of intimidation and offence experienced by men and
women in the legal and behavioural definition groups

              Response
Group         to the SH      Sex     Mean (#)

Legal         Offence        Women   3.58
definition                   Men     3.11
              Intimidation   Women   3.07
                             Men     3.16

Behavioural   Offence        Women   3.27
definition                   Men     2.85
              Intimidation   Women   2.81 **
                             Women   2.05

(#) Higher scores indicate greater levels of intimidation/offence
on the five-point Likert scale. * p <.05. ** p<.01.

Table 3: Formal report by legal and behavioural definition
groups, level of offence and  intimidation

Response to the SH    Group         Report   Mean (#)

Level of offence      Legal         Yes      4.20 **
                                    No       3.28

                      Behavioural   Yes      3.90 **
                                    No       2.99

Level of the          Legal         Yes      3.67
intimidation                        No       2.95

                      Behavioural   Yes      3.24 *
                                    No       2.42

(#) Higher scores indicate greater levels of intimidation-
offence on the five-point Likert scale. * p<.05. ** p<.01.
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