Submission to Select Committee on the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill
FYI, our submission. You could do one too, due by 15 July.
We do not support this Bill for the following reasons:
(i) There is no good evidence that making complaints about sexual harassment deserves more time than that concerning all other grievances. Being harassed regarding race, physical disability or other matters can be just as humiliating and daunting to address as most forms of sexual harassment. It can be emotionally difficult and daunting to mount formal procedures concerning almost any grievance against an employer or employer’s representative because that person is in a position of power to damage, in various ways not easily proven or applicable to existing employee protections, one’s livelihood, career, reputation and/or mental health on the job. In many ways the same applies to work colleagues. The claim is spurious that a sexual component to a grievance somehow makes it so categorically different from many other grievances that it’s necessary to extend four-fold the time limitation for raising it.
(ii) The Bill increases the risk of grievance complaints being unfair and/or spurious, thereby wasting resources on investigations, hearings etc. If someone has truly felt sexually harassed or discomfited, that person will easily become aware of it within 90 days. The longer it takes for such awareness to develop, or indeed for a decision to be reached regarding making a formal complaint, the more likely the matter is to suffer from embellished or distorted memory. The fallibility of memory has become clear through research over many decades now (e.g. Roediger et al, 2012; Schacter et al, 2011). Memory distortions can alter recalled events so that they will seem, over the course of time, to have been harassment when earlier, more accurate memories did not see them as such. The longer the duration since some interaction, the more readily the memory of that interaction will be distorted to accommodate some unrelated displeasure. That distortion may or may not be consciously deliberate. In either case, the accused person’s ability to recall events, to provide an explanation and so forth will be unfairly reduced the longer ago the events were, the same applying to potential witnesses. Further, witnesses are less likely to be available due to having left the employment and so forth. The frequency and cost of unwarranted complaints to an employer, the Courts and the emotional well-being of the accused will be increased by the Bill and the justification for this is simply inadequate.
(iii) The Act that this Bill seeks to amend is flawed with respect to its definition of sexual harassment. The Bill will extend the harm caused by those flaws. Section 108 of the Employment Relations Act 2000 calls for an accused’s behaviour to be defined and judged according to whether it is unwelcome or offensive to a complainant such that it detrimentally affects the complainant’s employment, job performance, or job satisfaction. This defines and judges an accused’s behaviour on the basis of the subjective feelings and coping of a complainant. While for some types of behaviour it is reasonable to expect that people will know there is a risk of it being unwanted or offensive, in many other cases (and those are often the ones that arise) that expectation is not reasonable. The Act could easily and should provide a more objective definition such as examples of behaviours at the boundary of proper vs improper. Even a definition based on ‘what an average person would find unwelcome or offensive’ would provide better guidance for keeping to the law and protection against unfair consequences. Further, Section 108 specifically makes it clear there is no need for the complainant to have conveyed to the accused that a behaviour was unwelcome or offensive. That provision simply increases the risk of injustice towards accused people who were not intending to harass or offend and who had no reason to believe they were doing so. Someone’s own particular, unusual history may render his/her subjective feelings especially vulnerable and it is unjust to expect others to read that person’s mind and to behave with abnormal care around that person. Again, for blatant or more extreme behaviour there may be no need for a complainant to have stated the obvious, but in truth many cases involve trivial behaviour that was done in good faith. Where behaviour is trivial, socially normal or ambiguous in intent and meaning, there should be a requirement for an accuser to have made clear it was unwelcome or offensive, and only if the behaviour then continued should it be considered to have been harassment. Unless and until such changes to the Act are made, we oppose this or any Bill likely to amplify the risk of injustice caused by the Act.
(iv) We believe that the basis of this Bill is sexist, in intention as opposed to wording. Due to biological as well as social factors, sexual harassment will be experienced or perceived overwhelmingly by women as being committed by men. Other forms of harassment may be as harmful or more harmful, but it seems that because men more equally may suffer those forms of harassment they are treated in the Bill as not meriting a four-fold increase in time to report them. Further, the Bill will function as another step-wise change in the law enabling women to attack men with either valid or ulterior motives. There is nothing in the Bill or in the Act it seeks to change that protects against or discourages unfair or false complaints. Men are already committing suicide at two to three times the rate of women and are joining antisocial gangs at increasing rate where they can feel a sense of being valued and respected. It is unwise and unjustified to keep making laws that can easily be used unfairly as weapons by women against men.
Roediger H and McDermott KB (2012). Distortions of Memory. The Oxford Handbook of Memory, Tulving E and Craik F (eds), Oxford University Press 149-161
Schacter DL, Guerin SA and St Jacques PL (2011). Memory distortion: An adaptive perspective. Trends Cogn Sci. 2011 Oct; 15(10): 467-474