Are confidentiality agreements letting sexual harassers off the hook?

by Donna Chisholm / 23 April, 2018

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Some experts are calling for confidentiality agreements in sexual harassment cases to be scrapped as the #MeToo movement gathers pace.

If the disclosures made under the banner of the #MeToo campaign are showing us daily what sexual harassment is, it’s instructive to read some recent Employment Relations Authority (ERA) decisions that outline what the law says it is not.

One is the 2016 ruling on the claim of retail store manager Kelli Balani, then 34, who alleged her 65-year-old boss, Craig Ireland, sexually harassed her during her year-long employment at The Clearance Shed in Pukekohe and that this left her no option but to resign.

Balani told the ERA that Ireland had asked her out when his wife was out of town “just so we can get to know each other better”. He regularly hugged her. He phoned and texted her on days off. In one text, he admitted it “must seem like I’m a stalker”; in another that he thought they had “good chemistry”. When she offered a handshake instead of a hug, he told her that wasn’t the way things were done there and that he would “break” her.

The authority found that Balani was unjustifiably disadvantaged by Ireland’s treatment of her, and her resignation was a constructive dismissal. It ordered Ireland to pay her $6000 for the breaches, $7000 in reimbursement of lost wages, $6000 compensation for humiliation and loss of dignity and $1000 for health costs. But it ruled that it was not sexual harassment under the terms of the Employment Relations Act.

“I was not persuaded any of Mr Ireland’s interactions were, either in themselves or in combination, established to be sexual in nature,” wrote the presiding ERA member, barrister Robin Arthur.

A former Human Rights Commission (HRC) investigator, Mary Irwin, questioned the decision. “Behaviour of this nature might be okay in your personal life, but this is a workplace; different standards apply. Would the perpetrator behave in a similar way with a male colleague? Hug him repeatedly? Ask him out? Talk about his wife being away?”

The confidentiality gag

The Listener wanted to ask Kelli Balani about her case, her reaction to it and advice for other women in her position, but she is bound by a confidentiality agreement. Indeed, lawyers and investigators we interviewed for this story said confidentiality provisions surround almost every complaint of sexual harassment. Ostensibly, this is to protect the privacy of the victim, but recent high-profile cases have made it increasingly clear that such agreements are also allowing the perpetrators to emerge with their reputations intact and silencing those who might wish to warn others of their behaviour.

When broadcaster Alison Mau, supported by Stuff, launched the #metoonz project in February, critics were quick to suggest women should follow existing avenues to complain about sexual harassment, by lodging a complaint with the Ministry of Business, Innovation and Employment (MBIE) or the Human Rights Commission (HRC). Both use mediation as a first option, and if a settlement can’t be reached, legal action at the ERA or the Human Rights Review Tribunal can follow.

But Balani’s father, the former Christchurch broadcaster George Balani, says that after attending both mediation and the ERA hearing with his daughter, he can understand why women wouldn’t wish to do it.

“After a complaint is filed, the first course of action is compulsory mediation where the complainant is forced to confront the alleged perpetrator across a table. To have to face your aggressor is not something most people feel comfortable about and it simply should not happen.

“My experience of mediators is that they will do whatever they can to achieve a settlement so the matter doesn’t end up in front of the authority. This isn’t a healthy position from which to mediate. The authority is not the easy, quick or practical body it was intended to be. What should be a simple, inexpensive and straightforward process has become quite the opposite.”

George Balani: “The complainant should not be forced to confront the alleged perpetrator.” Photo/Adrian Malloch

George Balani: “The complainant should not be forced to confront the alleged perpetrator.” Photo/Adrian Malloch

Figures at odds

Last year, MBIE identified just 18 mediations that included sexual harassment, and the HRC handled 75 complaints. But Green MP Jan Logie, the parliamentary under-secretary to the Minister of Justice for domestic and sexual violence issues, says those figures are “wildly at odds with the stories we hear around the kitchen table”.

Most cases are dealt with informally by employers, and the most common outcome is a confidential settlement. But Irwin and bullying and harassment prevention adviser Jan Eggleton say it’s time to lift the secrecy around the settlements.

“If one of the outcomes of sexual harassment was that all cases were published, that would have an effect,” says Irwin.

“That’s one thing we haven’t done – harassers maintain their privacy. I just think that if somewhere, proven sexual harassers had their name published and available to the public, it would be a huge impact on their lives: they couldn’t get away with their family not knowing or their workmates not knowing because that’s how it is at the moment.

“Even if the employer suffers because of that, because the company name is out there, they allowed it to happen and it puts more emphasis on them making sure it doesn’t happen in their workplace.”

Eggleton says there would have to be a time at which people could have their names removed from any public record because there needs to be an opportunity for offenders to “start again”.

Logie says she recently heard about a women who had initiated personal grievance proceedings for sexual harassment and left her job with a settlement and a confidentiality agreement. “Then she saw the man she’d complained against had employed a 22-year-old woman into the position. She wanted to warn her but felt stymied by the confidentiality agreement.

“I think that story indicates there is a problem in the system. I think we need to look at setting up monitoring systems so a third party facilitates those settlements and there is external accountability.”

Logie says she can see situations where the victim would want that confidentiality because they fear their reputation may be professionally compromised by having taken a grievance.

“But we know we have work to do on employers, sending very clear messages to the workplace that the person laying the complaint is not responsible for the harm. We see how confidentiality plays in favour of workplaces protecting their professional image and continuing appalling cultures of abuse.”

Hayley Young went to the Court of Appeal last month in a bid for compensation in New Zealand and Britain for alleged sexual harassment and rape. Photo/Hayley Young collection

Hayley Young went to the Court of Appeal last month in a bid for compensation in New Zealand and Britain for alleged sexual harassment and rape. Photo/Hayley Young collection

Hidden cases

Hawke’s Bay lawyer Jol Bates is representing naval officer Hayley Young, who was allegedly sexually harassed and raped during more than four years as a marine engineer. He says there’s no doubt confidentiality agreements are keeping cases hidden. Complainants enter such agreements “because they don’t want to jeopardise their future careers”.

But why should being a victim of harassment jeopardise a career? “It shouldn’t. But an employer will be looking at this and say, ‘Well, this person has raised a grievance; do we want to touch them with a bargepole?’ And that is a sad reality.”

Bates says it’s “absolutely” a problem of employer attitude. “But you also need to bear in mind that the aggrieved parties are often the ones who will insist on the confidentiality terms.”

High-profile law firm Russell McVeagh has said no confidentiality agreements were signed by the five clerks on a 2015/16 summer internship programme in Wellington who made complaints of sexual assault against two lawyers. But another law firm that hired one of the pair said it was not explicitly told the extent of the allegations. Had it known, it would not have employed the man, the firm said.

In February, reporter Michelle Dean wrote in the New York-based Columbia Journalism Review that the non-disclosure agreement had emerged as “a clear villain” in sexual harassment cases, “a character in almost every truly awful story that emerged from the #MeToo movement”.

“The reason many of these men felt protected from the consequences of their own bad behaviour is largely the same reason many corporations are confident their embarrassing revelations will never come out. Once a quirk of the technology industry, non-disclosure agreements have proliferated across the business landscape, purportedly placing every secret, every item of misconduct out of public view.”

Reporting by newsroom.co.nz on the Russell McVeagh case has also exposed another potential barrier to complainants getting the justice they deserve: the human resources (HR) staff who often handle the allegations may face serious conflicts of interest. Newsroom reported that the big law firm’s HR team advised one clerk complaining of sexual assault to be careful not to defame the perpetrator. They suggested she look at the summer programme “holistically” and arranged for meetings about the assaults to take place at a cafe in the firm’s building. A support person for the clerk told Newsroom that “the firm was primarily concerned with its interests – its reputation, its brand and its income. Only when the intern’s interests were in line with the firm’s interests did she get assistance.”

Phillipa Muir.

A rock and a hard place

HR staff are obliged to deal fairly with both the accused and accuser, but when the accused is in the company management, the accuser is a junior staff member and the employer is paying the HR person’s salary, it’s not hard to see the rock and the hard place on either side of them.

“I feel a bit sorry for HR teams,” says University of Auckland senior lecturer Barbara Plester, of the faculty of business and economics. “They have skin in the game, because they need to keep their jobs and they need to keep the hierarchy happy.” Hiring independent external investigators is one way companies can avoid the appearance of a conflict.

Denise Hartley-Wilkins, a board member of the industry body Human Resources Institute of New Zealand, says handling harassment cases can be “a really tough call” for HR teams. “Often people are protected at senior levels for a number of reasons – power, prestige or status, or they could be a high-fee earner. That can happen, and it’s not okay because it sends out the wrong signal. It’s wrong from beginning to end.

“[HR staff] have a duty of care to employees to provide a safe and respectful workplace and to follow through on complaints or concerns. But they’re also employees, and depending on the culture of the organisation, they’re at risk of losing their job in a culture that protects the harasser.”

Hartley-Wilkins says that if HR teams are to get traction in managing sexual harassment, they need to know that policies are being led, owned and championed from the top. “Codes of conduct are just sheets of paper; it’s how they are put into practice that counts. To bring them alive, they’ve got to have teeth, they’ve got to be widely communicated and understood, and there need to be clear reporting systems right up to board level.”

Associate Professor Bevan Catley, of Massey University’s school of management, says employers commonly fail to investigate allegations at all or conduct an inadequate inquiry because of minimal evidence, lack of witnesses or preconceived impressions of parties. Policies and procedures are often lacking, incomplete or not followed, or there is poor communication around the investigation process and potential outcomes.

He says the #MeToo coverage shows there is a dearth of data on the prevalence of sexual harassment in the workplace. A question on whether people have been exposed to it will be added to the new Workplace Barometer survey being introduced by Massey’s Healthy Work Group this year.

Bevan Catley. Photo/Ken Downie

Change in the wind

Irwin and Eggleton, who have spent more than 40 years between them in sexual harassment investigation and workplace training, say they’re confident the problem is in decline, particularly when compared with bullying, which has been on the rise.

“Change is happening,” says Eggleton. “You don’t see the porn calendars at the panel beaters any more, and I think younger women are feeling more empowered to stand up and say no.”

In 2013, Massey researchers interviewed 250 people with occupational health and safety responsibilities and only 40% agreed that leaders in their organisation were willing to stand up to people who ill-treated others in their workplace. “Unless your organisational leaders are prepared to confront it and deal with it, things won’t change,” says Catley.

In February, Minister for Women Julie Anne Genter announced that from July, MBIE would keep centralised records of sexual misconduct allegations mediated in the workplace. The figures are already kept as part of the ministry’s mediation records, but are bundled in with other cases.

Auckland employment law specialist Phillipa Muir, a partner at Simpson Grierson, acts mainly for large employers and says although it’s “unfortunately” been more common for a senior harasser to remain in his position while a subordinate accuser ends up leaving, that culture is changing and tolerance levels are declining. In her experience, complainants who leave their job “almost always” receive a payout – as they should – if they’ve been harassed and don’t want to stay.

She won’t comment on the typical size of such settlements. “It depends on the size of the employer, the earnings of the complainant, what predominantly she is wanting out of this, and sometimes on medical expenses being paid if they’ve been very distressed by this and have developed anxiety.”

Muir doesn’t agree with calls for an end to confidentiality agreements, saying complainants usually want to protect their own privacy and “move on”.

“I don’t think these settlements are designed to allow harassers to carry on in that way. Potentially there could be situations where they don’t learn from [the experience], but more often than not, I think they do. You don’t tend to see serial harassers, and I’ve worked in this area for quite a long time.”

She says more employers are taking a stand and are declining to enter into confidentiality agreements with the harasser. Muir says the organisations she works with have “great intentions” and “do set a good culture”, but many workplaces can have staff who don’t fit the culture or are out of touch with today’s accepted standards of behaviour. “You can train employees as best you can, instil a good culture and by and large build good work processes, but you can still have a rogue employee.”

Young graduating from officer training, 2008.

But Hayley Young, who’s fighting for compensation for the harassment and rape she says she suffered in the navy, says culture and policy in theory are often very different from what happens in practice.

“The party line of the navy would have been ‘Yes, you have to report it’, but the reality was that would have been complete career suicide.”

Usually, sexual harassers target subordinates, but for Young, an officer managing male subordinates, the opposite was true. “It felt to me like the executive curl on my shoulders made me a target. I think they respected me as a person, but it came down to a whole lot of unconscious biases, like male privilege seeping away and they weren’t sure how to deal with it. These guys were my friends – really nice guys – but in that environment they acted in a way that was consistent with the culture.”

Young says harassment occurred in micro-cultures – in the machinery control room (MCR), for example, but not on the bridge, where the atmosphere was like a courtroom. “In the MCR, I had authority, but I was completely outnumbered. It’s an interesting position that they don’t put many people in, where you have authority over the people you are relying on to train you. Technically, I outranked them, but they were teaching me about the machinery spaces so I had to keep them onside to be able to do my job and to learn.”

The alleged rape to which Young’s complaint relates happened in 2009, soon after her training began, when she was posted to a British naval base for 18 months. She says she was propositioned for sex up to six times a day in the UK and about once a month in New Zealand. She left the navy in 2012. Young went to the Court of Appeal in March in a bid for compensation in New Zealand and Britain. The court’s decision is reserved.

Wellington Unite Union organiser Jasmine Taankink, who represents workers in fast-food outlets, cinemas, hotels and call centres, says sexual harassment claims are still “quite frequent” and, in the past five years, she hasn’t noticed a change in the numbers she deals with, which hover around six a year.

“Always the perpetrators are men, and in the cases I’ve dealt with, they’re a manager or shift supervisor, so there’s a power dynamic. In most cases, they’re older than the person they’re targeting, but I’ve dealt with a lot of managers who are young cocky guys who have really big heads, and they bring that to work and act really inappropriately.”

Harassment usually begins with inappropriate comments but quite often progresses from there. Taankink says the union often asks for a proven harasser to attend a course to address his behaviour, but there are few on offer. “We raised it with the Human Rights Commission and they said we’d just have to look around.”

Like others we spoke to for this story, Taankink was critical of confidentiality agreements. “I’m not for workplace gossip either, but I dislike someone having a traumatic experience at work and not being able to share it.”

Screen Women’s Action Group co-founder Emma Slade: fear of being blacklisted prevents people from coming forward. Photo/Geoff Hedley

Screen Women’s Action Group co-founder Emma Slade: fear of being blacklisted prevents people from coming forward. Photo/Geoff Hedley

Cases to follow

The genesis of the #MeToo movement on social media was the exposure of high-profile sexual predators in the arts and media: Harvey Weinstein, Bill Cosby, Kevin Spacey, Bill O’Reilly, Roger Ailes and many others. In New Zealand, the highest-profile fall from grace so far has been that of former Shortland Street actor Rene Naufahu, who in January was sentenced to a year’s home detention after admitting indecent assaults on six acting students.

But other cases are expected to follow. Less than a week after the Naufahu sentencing, the Screen Women’s Action Group (Swag) was launched with the aim of changing an industry culture that enables sexual harassment and discrimination.

A Swag co-founder and spokeswoman, producer Emma Slade, says women in the industry are potentially more vulnerable to harassment because they’re often short-term nomadic contractors, frequently working away from home in a hierarchical business. “People don’t know what to do, who to talk to or what to say. They are terrified of losing their jobs. People say you should speak out, but that’s a really hard thing to do, and the younger you are and the more down the chain you are, the harder it is.

“Do we have a New Zealand Harvey Weinstein? I don’t know. We’d like to think we’d know if there was, but it’s really hard to say because so very few cases are reported, because of how women feel. The biggest fear is being blacklisted, so that prevents people from coming forward. They are terrified; they don’t want to put their head above the parapet.”

Two meetings in March of hundreds of women in the industry came up with a number of recommendations that Swag will send to industry bodies. They include trained “sexual harassment reps” on each project to whom workers can take complaints, an industry-wide code of conduct and education enabling people to better identify harassment. “The nasty end is easy to identify, but what about the other, death-by-a-thousand-cuts kind of stuff?”

Slade says women who experience or see harassment happening tend to “just put up with it and try to find ways of managing it and dealing with it. They say, ‘It’s just the way it is.’ What came up a lot is [harassers] saying, ‘Don’t take it so seriously; I was just having a laugh.’

“As New Zealanders, we do tend to joke and laugh. We work in a stressful, intense environment, so you need humour to liven it up. But when people get a bit handsy or make comments that are inappropriate, women don’t want to say anything in case they look like a spoilsport.”

Slade says she’s seen harassment happen, but until now, didn’t know what to do about it. “I thought what I saw were isolated incidents, but the more I’ve got involved with the group, the more I realise it wasn’t isolated. It’s happened before and more than once. And the horror of realising that … that’s disturbing. Now if I saw something I would totally call it out.”

Slade says she’s heard of allegations in the New Zealand screen industry that “are too sensitive to discuss and in the process of being dealt with. Actors have to be vulnerable to produce the best performances, and anyone who is junior is vulnerable. Perpetrators can spot someone vulnerable a mile off.”

At one Swag meeting, a woman asked if she should “name and shame” a perpetrator. Slade says a rape prevention adviser replied that she should think about her own safety before making that decision. “Are there going to be repercussions? Are you going to be trawled through the media and be given a really hard time? You can get so angry you just want to let it out, but before that, you need a community around to support you.”

She says the #MeToo movement has made everyone think twice about their behaviour. “That’s not necessarily a bad thing. If you’ve been doing something inappropriate, you have to suffer the consequences. It makes everybody think twice about what they’re doing and that’s terrific.”

In March, 450 women in the industry responded to a Swag survey on harassment. One in three said they had experienced it, and two in three said they had either experienced or witnessed it. Slade says the results are disturbing compared with rape prevention education statistics suggesting one in five women has experienced harassment.

She suspects there are men in the New Zealand screen industry who have a Weinstein-like reputation. “I do think they’ll be afraid, because they would have seen this rolling out overseas. A lot of people have lost their jobs because of this behaviour, and it’s happening in New Zealand and in other industries. It’s like a tidal wave. Watch out: it’s coming.”

This article was first published in the April 14, 2018 issue of the New Zealand Listener.

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