Guilt After Sexual Harassment? “Then you must have done something wrong yourself.”

Complainants are all too often left with a hangover, Mirjam Decoz sees in her practice as an employment lawyer. The complainants, in this case, are women who file a complaint about inappropriate behavior or sexual harassment at work. The hangover is the little that usually improves the complaint for them in the workplace. Decoz: “It regularly happens that a complainant at the end of the ride says: my employer has handled my complaint so carelessly, I no longer want to work for that.”

Decoz (52), who works for Vos & Vennoten Advocaten in Haarlem, specializes in undesirable behavior in the workplace, including sexual intimidation. She is working on a book on the subject, examining more than 400 court decisions on sexual harassment. She also provides training to confidential advisers and chairs complaints committees.

What Decoz also often sees: that it is not possible to dismiss someone through the courts for sexual intimidation or transgressive behavior. “Because a judge then says: the employer did not have a good policy, the ‘defendant’ could not have known that he was doing something wrong. And if the employment contract is terminated, it sometimes happens that he receives a substantial compensation because the employer has not acted carefully.” That at least sends a dubious signal to the complainant and colleagues, Decoz thinks.

Such a hangover can be prevented if organizations would think more carefully about policies for reporting undesirable behavior – but more on that later.

carelessness

The reason for the conversation with Decoz are issues that recently made the news. At the municipality of Amsterdam, alderman Laurens Ivens (SP) appeared to have made inappropriate allusions towards female colleagues for years. This had been known within the organization for some time, but it took a long time before anything was done with reports. However, female employees were advised to stay away from meetings where Ivens was present.

At the Rotterdam police, an officer received sexually tinted messages from a manager, a case that went to court. Although the court found the messages inappropriate, the officer should not have shared them with the media, it ruled, and the supervisor should not have been fired. And then there was recently a ruling in a conflict de Volkskrant. In a nutshell, the judge ruled that the newspaper should not have fired literary critic Arjan Peters. The newspaper’s investigation into reports of inappropriate behavior was “careless.” Peters received a severance payment of almost four hundred thousand.

Also read this article: #MeToo at the Binnenhof: your word against that of a member of parliament

Decoz will not and cannot say anything about all these matters, because she was not involved in the content. But she can explain why things so often go wrong within organizations when complaints about transgressive behavior or sexual intimidation, because many organizations resemble each other in their mistakes.

The main thing is that employers must ensure that transgressive behavior does not occur. But if it does happen, victims should be able to discuss it in a safe way. This is often not possible because organizations have ‘different priorities’, sees Decoz. “Of course, an employer is primarily focused on getting the work done, whether it’s a service company or a factory.”

Guilt is not guilt

Moreover, employers often lack expertise about undesirable behaviour. “An average employer is not equipped to investigate complaints or make policy in this area. Expertise is often hired in other areas, for example for the inspection of machines or workplaces. But in this area, many employers think they can do it themselves.”

This is already reflected in the composition of complaints committees. Often someone from the Human Resources department, from the works council or management board, joins the meeting. But you cannot conduct an independent investigation into a complaint in this way, Decoz warns. “They then have a double hat on: they are one researcher and have to decide on a possible measure or dismissal.”

Complaints committees often lack people with substantive knowledge of sexual intimidation and other transgressive behaviour. „You have to know the dynamics of organisations, for example how colleagues and managers react to each other. But you also need to understand what sexual harassment does to someone. There have been times when a complainant said: I feel guilty. The complaints committee subsequently declared the complaint unfounded. Because they thought: if you feel guilty, you must have done something wrong yourself.”

It is not always as unambiguous as a hand on the buttocks

But guilt isn’t uncommon among people who experience sexual harassment, Decoz said. “They start to wonder: could I have done something myself to prevent it? Like the raped lady in the short skirt. Such a feeling of guilt is completely separate from the truth-finding.”

In addition, an expert view is needed to recognize sexual harassment. It is not always as unambiguous as a hand on the buttocks of a colleague. „Often it is a process, which is called grooming. In this, steps can be discerned, which are not always conscious. Then a colleague first builds a relationship of trust with a colleague. It ranges from forging a bond, the ‘we have good contact with each other, don’t you’, to isolating colleagues, ‘if there is anything, you should be with me’, to sexualizing. You can recognize those steps as commission. Now that often doesn’t happen, because it only looks at: did that pinch in the butt take place or not?”

This limited view also means that signals are not picked up until late, the lawyer thinks. “Many employers only act after an incident has occurred.”

Confidentiality and good agreements about what is and is not disclosed in a procedure are also important. Just like that the procedure itself is ‘neatly’ followed. Take something apparently simple like hearing both sides of the coin – that’s where things often go wrong. A complaints committee must hear both parties twice, so that they can respond to each other’s story. “Because of course they contradict each other the first time.”

#MeToo

If an employer is not careful, it will be more difficult to have an employment contract dissolved in court. Decoz: “Bad investigations regularly end up in court.” That happened for example de Volkskrant: the judge charged that newspaper with careless research heavily.

Decoz therefore advocates better rules for dealing with complaints. This can be done, for example, through the Occupational Health and Safety legislation. At present, employers often still have to ‘reinvent the wheel’ for a complaints procedure.

In recent years, Decoz has seen change at the subdistrict court – since the #MeToo movement emphatically tackled sexually transgressive behavior. “Little by little, I wouldn’t call it a turnaround.”

Also read this article about transgressive behaviour: Halsema knew about alderman Ivens’ advances, why didn’t she intervene sooner?

Nevertheless: “There are now some judgments in which the subdistrict court stated: you may not have been warned literally, but you should have thought of this behavior yourself that it was not appropriate.” That’s better for the person who’s been bothered by the behavior, Decoz says; the culprit doesn’t get away with it anymore. The downside of this, she fears, is that it does not encourage employers to develop good policies.

What does Decoz recommend to people who are confronted with transgressive behavior in the workplace? “Go to a confidential counselor and discuss how you can stop the behavior in a safe way. Sometimes people just need some tips, with more serious facts it may lead to a complaint. And if there is no confidential adviser, go to the health and safety service if necessary. In any case, don’t get stuck with it yourself.”

#Guilt #Sexual #Harassment #wrong

source https://pledgetimes.com/guilt-after-sexual-harassment-then-you-must-have-done-something-wrong-yourself/