Guest Post by Dr Rebecca Michalak
About couple of weeks ago, the Australian Financial Review (AFR) featured a piece on a law firm that had introduced a mandatory approach to reporting sexual harassment – referred to as a ‘no bystanders’ rule.
To be clear upfront, here is my disclaimer – I am not directly commenting on the law firm in question; there isn’t enough information in the articles to make any objective judgements on that front. The references used from the two media pieces are for illustrative purposes only. Call them ‘conversation starters.’
In the AFR piece, the contractual obligation was outlined to involve:
“…chang(ing) ‘should’ (report) to ‘must’ – so any staff member who experiences, witnesses, or becomes aware of sexual harassment must report it,”
with the affiliated claim being,
“That shift really reinforces that there is zero tolerance – and there are no confidences to be kept; it needs to be outed – bystanders [staying silent] will no longer be tolerated.“
The the full AFR piece is here but behind its paywall.
In its far too frequent, ‘Oh look, there’s a unicorn’ fashion”, the Australian Human Resources Institute (AHRI) was quick to jump on the “no bystanders rule – what a great idea” bandwagon, hailing the rule as a “new weapon against sexual harassment” and a “small change” (in fact – a “single word” change), with “big impact” in a HRM Online piece published a few days ago.
Unfortunately, in the absence of any research evidence to support the initiative, no evidence-based explanation of how it ‘works’ (*cough* – doesn’t work), no data, in fact nothing but verbal comments from two senior firm reps touting the change as being fantastic – not even any supportive commentary from other employees – you can’t even accurately classify the AHRI piece as a case study.
Frankly, it reads more like an advertorial but then HRM Online is “the news site for Australian HR Institute” so…….
To give you an idea where I am about to go with this – If you want a relevant example of a “one-word” change that utterly backfired (in terms of having negative effects), read David Peetz’s 2018 review of the Worker Compensation Scheme in Queensland, in which the change to the causal connection test from the word “a” to “the” was found to have deterred legitimately psychologically injured workers from even lodging a Worker’s Comp claim.
For funsies, feel free to follow up with informing yourself about the concurrent rise in TPD (Total Permanent Disability) claims for mental health conditions, which provides evidence that these injuries are being pushed into a non-Worker’s Comp system that should not be responsible for paying them out, (in part) resulting in the retail TPD insurance schemes being, at best, unsustainable and in some reports, described as on the brink of collapse. For example, recently reported Retail TPD scheme losses increased a further $122 million, to $1.13 billion per annum.
Back to the ‘no bystanders’ issue and the AHRI piece. In amongst a bunch of fairly run-of-the-mill (snore, zzzzzz), shiny human resources (HR) rhetoric about transparency and leadership, etc., was one particular comment that prompted me to haul out my laptop and start typing.
The firm’s CEO was quoted as stating,
“The only way to eradicate (this behaviour [staying silent]) is by making reporting compulsory.”
Okay – Stop. Right. There.
Back that mount up, rider. Do not pass go. Do not collect $200.
Or, as any expert in the field will tell you – “Sit the hell down and shut the hell up – you’re talking complete bullshit.” (In Monopoly terms, “Go immediately to jail.”)
At least that’s what experts exclaimed very loudly AFTER they removed the fork with which they just stabbed themselves in the eye.
A ‘no bystander’ rule is a classic one of many bullshit initiatives that seem, on face value by naïve or otherwise non-informed parties to be “A Good Idea”, but is more likely to be ineffective, have counter-to-intended effects, and is, in reality, “A Very Bad Idea”.
These bullshit initiatives are usually the brain fart of, at best, a very ill-informed and, at worst, lazy and or incompetent HR manager/executive/[insert relevant initiative creator and advocate here].
So here goes – I am going to cover just a handful – five – relevant issues of the many that exist:
1. If workers are not already willingly reporting sexual harassment, bullying, discrimination, etc., (be it as a victim, witness, or bystander) without it being ‘contractually mandated’, you do not have a culture of voice.
Simples. If you did have a voice culture, you wouldn’t need such contractually explicit measures.
And you can claim you have a voice culture until you are blue in the face and the cows come home; it doesn’t mean you have one.
Reality check: I hear the claim, “we promote, encourage, and or have a culture of voice” time and time again. It’s getting boring, to be honest. If I wanted to listen to trance HR, this claim would be right up there in the mix.
It’s not only pretty much ubiquitous, it is very often uttered alongside its similarly shiny rhetoric counterpart statement of “[insert Zero Tolerance bullshit statement/policy here]” in any media piece or HR branding piece that mentions sexual harassment, bullying, or the ilk.
Ironically, including those in which a PCBU (Person Conducting as Business or Undertaking) has been exposed for having anything but a culture of voice OR Zero Tolerance (just Google ‘sexual harassment’ with Deloitte, KPMG, EY, the list goes on and on).
Look, I get it, it’s understandable – after all, what organisation wants to admit, “Actually, we promote, encourage, and or have a culture of absolute silence”, and “Actually, we protect and promote sexual harassers and bullies”?
It isn’t great for your EVP (Employee Value Proposition). I can think of many other stakeholder groups that would be less than impressed, including activist shareholders.
Below is a typical conversation I have when I talk to clients: “And how do you know this culture of voice exists?”
I most often get one of two typified responses. The first is,
Manager: “Well, our internal surveys tell us everyone lurves working here, and whenever I talk to workers face-to-face, they say they’re super-duper happy.”
Me: “Do you ever get an independent party to run a survey / focus group / set of interviews and analyse the data? In those independent assessments, are workers asked anything not automatically skewed towards blowing smoke up your arse? Are they actively requested to give you the ‘bad news’, or do you subtly or obviously manipulate workers to agree with you about how great you think organisation is?”
[Insert dumbfounded look, complete silence, and or – on occasion – a lightbulb moment here].
The alternative common response to the initial question is,
Manager: “Well, what I mean is we simply don’t have an issue with these sorts of (sexual harassment, etc) behaviours.”
Me: “And how do you know you don’t have any issues?”
Manager: “Well, because we don’t get any complaints,”
Me: “So tell me again, exactly how do you know you don’t have any issues?”
In the pause that inevitably follows, I usually add,
“Do you ever have an independent party to gather anonymous data asking workers about things like psych hazard exposures like sexual harassment, bullying, overwork, etc.? Better still, does the independent party ask about lead indicators thereof? Or are you just assuming because no one formally complains, and gee – I just can’t imagine why that might be the case – that everything is tickety-boo?”…….
(Insert dumbfounded look, complete silence, and or – on occasion – a lightbulb moment here).
Interestingly, in the aforementioned AHRI piece, the firm’s Workplace Health and Safety partner stated,
“People are so grateful to work at (our firm) in such an open culture… I’m quite sure if you asked employees if they felt a complaint about sexual harassment would be treated seriously, they’d say yes.”
(Me [insert eye roll]: Orly… How nice. Er, putting aside the whole ‘you’re quite sure’ thing, can you point me to any evidence in support of your personal opinion on this front? Anything? Anything? Bueller? )
I much prefer to hear organisations say things like, ‘We could well have a problem and not know it,” or better still, “We know we have problem, but we just don’t know how to we can better encourage voice,” or, best, “We are actively working on our known problems on this front. We receive both formal and informal complaints, and here is how we deal with them, and here is the outcome evaluations from all parties involved, and here are our lessons learned to date.”
Getting complaints and regularly having issues and concerns raised are clear and critical signs you have encouraged a culture of voice. If you aren’t getting any concerns being raised or complaints made – formal or informal – then you have a culture of silence. Unless, inter alia, you can prove you conduct regular, proactively looking for ‘bad news / psychosocial hazard exposures’, independent and fully anonymous assessments that indicate otherwise (Please let me know if your organisation participates in such assessments, be great to hear of and showcase PCBUs actually doing the proactive thing).
Smart organisations that really take sexual harassment, etc., seriously deploy a range of primary prevention strategies to eliminate the hazard before it even happens, and are proactively looking for early signs it might be happening.
They don’t just point to a (“cough” useless, shiny rhetoric) “zero tolerance” policy or statement, nor an “Anti- Bullying/Harassment” policy, because they know such measures aren’t even administrative controls; they are usually mere vehicles for administrative controls, which inconveniently require hazard exposures to occur and be well managed FIRST, before their control effect is realised.
Admin controls being but one rung from the LEAST EFFECTIVE risk management tier (aka, PPE), of course.
Crux: These PCBUs sure as anything aren’t waiting for victim, witness, or bystander reports. They know to do so is called ‘rescue management’ and ‘clean up the mess’; it isn’t primary prevention AKA, sitting waiting for reports to come in. This is a PCBU primary prevention fail.
2. In the absence of the required voice culture, introducing a ‘no bystander rule’ means the organisation is, unreasonably, enacting an individual-level punitive measure in an attempt to account for what are first and foremost, organisational level (cultural, systemic) failures.
Whether intended as such or not, it is a dodgy attempt to defer responsibility and accountability to vulnerable, harmed, and or at-risk workers to act after the fact no less, rather than focussing on the PCBU proactively acting in every single way ASFAIRP – as it is legally required to do so – to meet its OHS primary duty of care obligations to prevent harm.
As a side note, here are a couple other SENSATIONAL ways to actively deter reporting:
- Have a policy that classifies bullying, sexual harassment ,etc,. as just grievances – not as the OHS hazards they actually are, and outline a process in which the victim should first raise the grievance with their perpetrator (“oh, hi hazard, I just wanted to spend more time with you’), with the second stage in the process being compulsory face-to-face mediation (“thanks for reporting your hazard – now let me forcibly stick you in a room with said hazard and harm you just that little bit more….“); and
- Have “(a) policy like this (that) has the potential to make things much easier for HR. The perpetrator, the person coming forward and their colleagues know that the HR professional is obligated to formally report what’s shared” (“oh, thanks for coming to talk about this very private, confidential matter – allow me to just go share that info with a bunch of other people, including the perpetrator“).
Which leads me to…… (wait, excuse me a moment while I get the fork out of my other eye…..)
3. Victims, bystanders, and witnesses do not report for similar, and very legitimate, reasons.
Reality Check: Research tells us a lot about cultures of voice versus silence, including barriers to reporting. A very big one of the latter being fear of negative consequences.
Another one being that poor HR conduct and practices are inherently involved in many negative consequences feared, so guess what? HR is in the absolute thick of it when it comes to causes of a culture of silence.
For cultures of voice to exist, the organisation must do the hard work to reduce or remove reporting risks – including the plethora of barriers to reporting that we know exist – and increase reporting utility first.
Plus the PCBU needs to do a range of other things with respect to having multiple reporting avenues, completely anonymous options, high levels of ease of access, and so on – and then the PCBU needs to prove – not just claim – to workers they can report without negative consequences.
All this needs to happen long before throwing workers down the mandated action path; let alone punishing ‘inaction.’
Frankly, while we are on the topic, any imperative to ‘make things easier for HR’ at the expense of the welfare of victims, witnesses, and bystanders needs to be called out as completely inappropriate.
I mean seriously. How about aiming to make HR operate ‘better’ – in a more evidence-based, more competent, more corporate governance influencing and strategic way that Executives are more likely to listen to and support – rather than aiming to ‘make it easier?’
And I am not being flippant here – I get the challenges that exist in HR, and that there are grey spaces that can be difficult to navigate. I also know even some really good operators are pushing it uphill on these fronts.
But far out folks, since when has actively sacrificing the health and safety of pretty much every other worker to make things ‘easier’ for one department been A Good Thing To Aim For? Especially in the face of research evidence showing HR is already monumentally distrusted (again, for good reason), and that only having HR reporting options is in and of itself a key barrier to reporting?
Come on HR, you can be better than this. Yes – You’ve a lot of work to do to critically reflect, recognise your flaws, own your long history of mistakes, acknowledge your limitations, learn to work with and take the lead from other departments (like OHS, on this front), and develop professionally.
Work with OHS. Get experts in. Abandon the grievance model. Adopt a psychosocial hazard approach. Engage in proper risk management. Primary prevent harm.
And for F*#$ sake – stop suggesting and/or agreeing to enact poor HR practices (BTW, accessorial liability anyone?) HR needs to become better before it’s reasonable for things to be made ‘easier’ for HR.
While I am on the topic – AHRI, AHRI, AHRI (facepalms – with a spoon in each eye). Step the hell up to the plate. You wonder why HR has such a bad reputation? Its own professional body far too often leaves a lot to be desired on the evidence-based practice, operate-with-competency front.
Quit with the promotion of non-evidence-based and incredibly destructive HR practices.
You want to use an example you spot in the media – critically examine it first. Consult with experts. Get evidence – and, because it seems you need to be told – a couple of personal opinions from vested interests parties Are. Not. Evidence.
Don’t just go holding some brain fart out as a great idea when it’s anything but. You are giving your own members a royal bum steer.
Crux: In addition to being the sort of complete bullshit I expect to fall out of Trump’s mouth, any claim that making reporting mandatory is the only way to stop a culture of silence is not only entirely incorrect, it runs completely counter to pretty much everything a culture of voice is premised on. Including that a voice culture relies heavily on the absence of fear in victims, witnesses, and bystanders.
Bringing in punitive measures like a ‘no bystander rule’ only compounds already high levels of fear in these worker groups.
(Note, creating fear in actual or potential perpetrators is acceptable – see also Point 4 below and my new, better, different versions of a ‘no bystander rule’ suggestions below).
4. A mandated ‘no bystander’ approach goes directly against the evidence-informed and recommended trauma-centric approach to sexual harassment, bullying, and other psychosocial hazard exposures.
Reality Check: Being trauma-informed explicitly avoids prescribed, clinical, or compulsory actions being forced upon directly and/or vicariously harmed workers – which includes victims, witnesses, and bystanders. That includes forced reporting.
Abiding by a victim’s communicated wish to keep a matter informal or confidential is anything but ‘feeble.’ Only a feeble-in-our-own-actions organisation would make such an assertion.
Unless you can prove that a bystander or witness is a perpetrator advocate and or fellow perpetrator and that’s why they aren’t reporting, not going directly against a victim’s wishes not to report is simply operating within the effective, thus recommended, trauma-informed approach.
In fact, to go against these wishes is to likely cause harm to a worker, so one needs to be very careful indeed. In my honest opinion the type of organisation that touts a ‘no bystander’ rule is just the type of organisation to engage in punitive measures against a worker who reports, but in doing so harms the victim even more, in a fashion that completely contradicts the underlying premise of the flawed reporting requirement…. See Point 5 below.
Crux: You cannot threaten a harassed worker into complaining. You cannot fearmonger a witness into intervening in, or reporting, a bullying, aggression, or violence incident. You cannot force a bystander – be it going against a victim’s wishes or not – to report a sexual assault or harassment event.
To do so goes against the very purpose of a health and safety perspective on these issues – a perspective premised in harm prevention. It is mind-boggling to even attempt claiming worker health and safety is a priority if in the next breath an organisation is touting a ‘no bystander rule.’
5. Finally, NEWSFLASH for those of you not yet across OHS laws on psychosocial hazards (not that it seems to stop some claiming they are taking a ‘psychological safety’ view….): Reporting hazards is actually already ‘mandatory’ under OSH law worker level duties, and failures to do so can be disciplined accordingly.
You probably already have a clause in your employment contracts covering OSH non-compliance as a grounds for disciplinary action. If you don’t, you should.
However – before one goes goes wielding such a big, punitive OHS stick, a word of extreme caution:
Any management (in this case, disciplinary) action must be reasonable, and undertaken in a reasonable fashion, and it must also not require a worker to undertake unsafe or unhealthy actions.
Reality Check: I can’t see any organisation successfully arguing disciplining a worker – especially terminating their employment – for not reporting sexual harassment, bullying, etc., as being reasonable management action done reasonably when reporting presents a foreseeable risk to the worker’s own health and safety.
It is an unfair dismissal and or adverse action claim just waiting to happen:
“But PCBU, I was only trying to preserve the victim’s/my own safety and health as I am legally obliged to do/I was only exercising my right to health and safety.”
Overwhelming evidence indicates reporting, as it currently stands, is high risk (and low/no utility). The majority of any reporting party face a wide range of harmful post-voice victimisations – some of which are general projections violations (adverse actions) and a proportion of which constitute psychosocial hazard exposures in and of themselves.
The skinny is in the vast majority of cases, victims, bystanders, and witnesses have legitimate health and safety reasons not to report.
(I’ve provided data and research on post-voice victimisation prevalence in other posts; and also the relevant section of the Causes and Consequences of Psychosocial Risk Exposures Report.
Crux: You don’t expect a worker without Breathing Apparatus on and the right training to go rushing into a gas filled room to rescue other workers; in fact, you’d probably fire them for doing so. So don’t mandate them putting themselves at risk of becoming a victim themselves or at risk of other forms of very likely-to-occur harm by reporting, when the reasons they don’t report are far too easily accounted for with a risk-of-harm explanation.
Sure – respecting a victim’s wishes not to report can be in conflict with worker level duties to report hazards, and creates a bit of grey space. Navigating that grey space is best achieved through organisations being very much focussed on primary prevention of sexual harassment and bullying, etc., – rather than focussing so heavily on reporting the hazard exposure once it has already occurred.
When everything ASFAIRP to primary prevent sexual harassment, bullying, etc., is already being done, then you can turn your attention to having multiple different means of reporting that facilitate preservation of a victim’s wishes while still meeting worker level OSH obligations.
Both aims can be concurrently achieved; they are not mutually exclusive. It just means taking an evidence-informed approach, not being lazy, and not resorting to ‘one word,’ attempted silver bullet style, bullshit ‘solutions.’
Now, before I wrap things up, those of you who know me well know I am a fan of punitive measures. Here’s my top four suggestions for implementing new, better, different versions of the ‘no bystanders rule’ in an evidence-informed manner – aka effectively.
In order of execution:
1. HAVE A ‘THE PCBU WILL DO ALL THE PCBU-LEVEL HARD WORK FIRST’ RULE
Make sure you have already done everything I outline above and some, to ensure you do actually have a proven culture of voice and have fully met your PCBU primary duty of care obligations to prevent sexual harassment, bullying, etc.
That means wrestling these issues out of HR’s clutches and utterly flawed but prevailing grievance model approach, and putting them under OHSH, which – inter alia – was identified in the Respect@Work National Inquiry Report as the most effective legal framework to prevent and manage these issues as the various laws currently stand.
That also means going all-in OHS, including adopting a trauma-informed perspective; not just ‘ohhhh, we (claim to) make it ‘safe’ for workers to report.’
2. HAVE A ‘NO PERPETRATORS’ RULE
Make it contractually explicit that any substantiated or partially substantiated sexual harassment, bullying, etc., complaint will be deemed a serious breach of worker level OHS duties (given the severe harm known to be caused by these hazard exposures – including suicide ideation and suicide), and the perpetrator will be disciplined accordingly, most likely with summative dismissal.
Create fear – for actual or potential perpetrators. Fear is a high activation, primary emotion, with a self-preservation function. Use it.
3. HAVE A ‘NO POWERFUL BYSTANDERS OR WITNESSES’ RULE
This rule should apply only to Officers, executives, and senior leaders and managers.
These people who are in powerful positions, must set an example, are the group most responsible and accountable for creating and maintaining a culture of voice, and must be the first to face punitive measures for not utilising their powerful positions to prevent harm, and to protect and support more vulnerable and or harmed workers.
Research tells us they’re also the group most likely to include perpetrators, and thus tend to have vested interest perpetrator protection, advocacy, and support tendencies.
Note – Exempt persons you encourage or otherwise direct reporting to – for example, if you want reports to go to the Director of OHS or HR, exempt them from this rule.
4. HAVE A ‘NO PERPETRATOR PROTECTORS’ RULE PAIRED WITH A ‘NO COVERUPS IN GENERAL’ RULE.
Build up a clear set of examples of people falling under Point 3 who have faced punitive measures for not reporting.
Clearly communicate these examples – in fact, examples of all the above suggestions too – to workers and the public.
And don’t give me that ‘confidentiality and privacy’ BS – get your legal team to tell you what you can state as fact.
No more opaqueness; no more ‘no comment’ stances. It’s called ‘transparency.’
Show the rest of your workers you are serious about voicing. That you aren’t asking them to risk voice when those well above them and much more empowered than them can get away with not doing so, nor when perpetrators are clearly being facilitated out in a protected fashion, as unscathed as possible, or worse still, are being retained while vulnerable victims, witnesses, and bystanders face punitive measures including losing or being actively or passively forced out of their jobs.
Contractually state that anyone under Point 3 who, through not reporting as they are mandated, is found to have deliberately engaged in conduct protecting, advocating for, or supporting a substantiated perpetrator will be summarily dismissed.
In addition, ban Non-Disclosure Agreements (NDA). These were designed to protect Intellectual Property; not bullies, sexual harassers, and perpetrators more broadly.
Especially any NDA not requested by victims with substantiated or partially substantiated complaints. If an NDA is requested by a victim to protect the victim (not the PCBU; the PCBU needs to face up to, own, and learn from its errors), make sure it doesn’t provide any protection to the perpetrator.
Again, create fear – in not only perpetrators, but also in powerful workers who see fit to protect, advocate for, or support perpetrators while punishing vulnerable victims, witnesses, and bystanders.
NOW……IF you can achieve all the above – in other words, you can prove without doubt you have a complete culture of voice internally, including all the necessarily intertwined, aligned mechanisms and systems – THEN, and only then, think about making that one-word change to your employment contracts for new workers.
Because then you might actually be able to argue you are undertaking reasonable management action in a reasonable fashion, and not engaging in adverse actions. Oh, and not breaching OHS law by forcing harm on workers.
You must have a white hat culture before you can insist on measures that should be, in effect, a nothing more nor less than legitimate means to push black hat workers out.
OK – Let me go back to the beginning. There are many clear and evidence-informed ways to encourage voice and discourage silence. Changing one word in your employment agreement isn’t one of those ways.
Making that ‘single word change’ in isolation, without doing any of the prerequisite hard work at PCBU level, actually won’t have any positive impact, let alone ‘big’ positive impact, because it is nothing more than creating-fear-in-and-punishing-the-wrong-parties attempt to defer PCBU accountability and responsibility.
It will, however, have a big negative impact.
So quit with the shiny rhetoric versus reality ‘no bystanders’ psychological safety bullshit, and start focussing on actually creating that culture of voice – that safe and healthy workplace in which sexual harassment, bullying, and so forth are primary prevented and genuinely not tolerated, AKA create the workplace you keep opining you already have.
As always, questions, feedback, and comments welcome, as are examples of organisations that really do have a culture of voice. Let’s showcase the exceptions to the rule. Thanks for reading and feel to share with anyone you think might be interested in the content.