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The confidentiality and transparency principles advocated by the Champions of Change report, Disrupting the System, are aimed at creating a culture of prevention.
“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 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:
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 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:
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.
I am passionate about working with clients on strategic and sustainable workplace solutions. My approach to managing workplace risk is through the lens of purpose and practicality. As an adviser to leaders, I am often involved in creating strategic and tactical solutions to a myriad of issues. Much of my work is highly delicate and confidential and can involve matters relating to behaviours exhibited by those at the top of an organisation.
© 2021 MinterEllison
