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https://www.minterellison.com/articles/balancing-transparency-and-confidentiality-key-to-managing-workplace-sexual-harassment

Balancing transparency and confidentiality key to managing workplace sexual harassment

6 minute read  15.02.2021 Amanda Watt

The confidentiality and transparency principles advocated by the Champions of Change report, Disrupting the System, are aimed at creating a culture of prevention.

During the past few months, I have spoken to many business leaders about the confidentiality and transparency principles advocated in the report Disrupting the System – Preventing and Responding to Sexual Harassment in the Workplace (2020) published by the Champions of Change Coalition (CCC).  The principles call for transparency by organisations in how they respond to sexual harassment in the workplace, starting with the most fundamental disclosure - the fact that sexual harassment claims exist in the organisation. The aim of the transparency principles advocated in the report is to create a culture of preventing sexual harassment by openly discussing the existence of sexual harassment in our workplaces and sharing learning to prevent future cases. Transparency demonstrates to the workplace that sexual harassment is treated seriously, and offenders are held to account, including publicly, where stakeholders have a reasonable expectation to know more about the matter.  

Confidentiality and transparency principles

With any change, the first step can be the hardest. That is to acknowledge the issue.  I advise clients to place the confidentiality and transparency principles in context - they are fundamental to creating the psychological safety in workplaces which will help us prevent sexual harassment in a systemic way.

“The principles are fundamental to creating psychological safety in workplaces”

 

They achieve this because, if followed, people will come to trust over time that the organisation does not tolerate sexual harassment and will manage it effectively. This approach aligns with one of the recommendations from the [email protected] Report, which is that the Federal Sexual Discrimination Act be amended to provide a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation.

Data collection and reporting is essential

Once this first step has been taken and assuming the board/governance body and executive team have adopted the principles, the next steps are:

  • to create a communications plan so their support of the principles can be made clear throughout the organisation; and
  • to become clear on the organisation's position on the following questions, so practical implementation of the principles can be communicated and executed.

To do this effectively, an organisation must have a clear process to capture sexual harassment data and can draw on a myriad of direct and indirect sources. These include:

  • direct reporting of sexual harassment
  • employee surveys
  • exit interviews
  • compensation claims data
  • conversation and consultation
  • review of complaints and
  • past incidents.

Organisations may be unclear on how broadly they share that data.  Do they include their employees, the board, regulators, investors and other stakeholders in the reporting audience?  And how much do they share?

For example, will the data be de-identified regarding the offender even if there is a legitimate public or stakeholder interest and an investigation has found allegations substantiated?  The answers to these and other questions are best examined now, rather than when in the midst of a crisis.

“Retaining agency over the story of their experience and how it is told is a powerful part of healing”    

 

An important principle in the report relates to the period after any investigation is complete, and whether our organisations will restrict the complainant's right to speak.  A binding NDA of confidentiality has for many years been common practice, yet for many complainants, retaining agency over the story of their experience and how it is told is a powerful part of healing– this is important to redress the power imbalance which often precipitates sexual harassment in the first place, and to aid in their recovery.

Striking a balance between confidentiality and transparency

The business leaders I am working with are genuinely focussed on how to get the balance right between confidentiality and transparency.

This comes back to taking a principled approach which acknowledges and understands conceptually that confidentiality and transparency are directed to different but compatible objectives.

In essence, confidentiality applies throughout the complaints and investigation process. During that process, only those who need to know about the issue in order to help resolve it, and prevent further incidents, know the details.  Taking a human-centred approach, it continues after the process in relation to the identity and privacy of the complainant if that is their wish, and may take the form of a NDA if they wish.  Transparency applies after that process is concluded.

The confidentiality principles in the CCC report are directed to protecting the integrity of an investigation so its outcomes are fair, and any action taken is proportionate to the context. It is difficult to ensure fairness and protect the wellbeing of all involved in an investigation when their identity is known, and the matter is being played out in the public domain.

It's not fair to damage someone's reputation before any adverse findings are made.  With a human-centred approach, the people impacted by this process will likely want to be heard without the glare of publicity or workplace gossip – and confidentiality gives space to work out the appropriate outcome.  It is also important that witnesses do not speak with each other so there can be no influence on what they have to say.

The New Form NDA

The traditional NDA is a legally enforceable confidentiality agreement or confidentiality clause in agreements between organisations and complainants.  A financial sum is provided to the complainant by the organisation in settlement of the sexual harassment matter in exchange for the complainant's agreement not to discuss the matter publicly or take legal action against the organisation.

NDAs can be appropriate when they protect the privacy of a complainant at their choosing, provided that they can still share their story if they choose to do so. In this way, there is no coverup of the behaviour because the complainant retains agency over telling what happened and the NDA can act as a protection of privacy for the complainant rather than a restriction or gag.

In my view, if NDAs are to align with the recommendations of the CCC report they should have the following characteristics:

  • presuppose that a confidential investigation has taken place
  • only include confidentiality clauses if the complainant agreed
  • be clear on the limits of that confidentiality, including as to the complainant's ability to engage with regulators on the matter in the future
  • protect the complainant's identity and privacy
  • ensure the amount of any settlement payment to the complainant is confidential
  • would not preclude the complainant from speaking about the complaint at any time in the future so they retain agency over how their story is told
  • expressly carve out the right of the organisation to disclose, both internally and externally, that a complaint had been made and how it had been dealt with and any substantiated outcomes (in a de-identified way) so it can include that matter in its aggregated data
  • carve out the right to disclose the perpetrator's identity where there is a legitimate public or stakeholder interest, and an investigation has found that the allegations are substantiated. These carve-outs are essential for ensuring adequate transparency to enable the systemic prevention of sexual harassment and to ensure the organisation fulfils its duty of care to all its people.

Managing workplace sexual harassment is not simple – nor has it ever been. However, if business leaders re-frame sexual harassment as part of their duty of care to their employees, just as they do with occupational health and safety matters, procedures for managing it will be more robust and workplaces will be safer for all employees.

Further Reading

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https://www.minterellison.com/articles/balancing-transparency-and-confidentiality-key-to-managing-workplace-sexual-harassment

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