Barriers to taking legal action for workplace sexual harassment: lived experience recommendations for justice responses to sexual violence

In June 2024, Circle Green Community Legal sent our submission to the Australian Law Reform Commission’s Inquiry into Justice Responses to Sexual Violence.

Guided by our professional experience assisting WA workers who have been targeted by workplace sexual harassment, the experiences of our clients, and input from our Workplace Respect Project Lived Experience Advisory Panel (LEAP), Circle Green made 22 recommendations for the improvement of civil justice responses to workplace sexual harassment.

In this blog, we’re highlighting some of the recommendations that came directly from our most recent LEAP meeting. We spoke with the LEAP about what had encouraged them to take legal action, and what had acted as a barrier that either stopped them from taking legal action or made taking legal action feel more overwhelming or burdensome.

The LEAP highlighted challenges including:

• lack of education;
• stigma and shame;
• a lack of understanding of the legal system;
• a lack of faith in the justice system created by repeatedly hearing about cases with poor outcomes; and
• potential re-traumatisation as part of the legal process.

Based on their own experiences of navigating reporting sexual harassment and engaging with the legal system, the LEAP made a number of suggestions for justice responses, including:

Trauma-informed legal processes

“I was 16 at the time. I didn’t have any knowledge of the legal system. I had a lack of faith in the justice system, even more so now the more cases that are coming out and being repeatedly shut down. As a victim-survivor, it’s scary to be vulnerable and willing to essentially re-traumatise yourself to potentially not get the outcome you need.” – LEAP member

In consultations, the LEAP consistently identify a need for a more trauma-informed legal system. Trauma and the mental health impacts of workplace sexual harassment can make engaging with legal processes re-traumatising. Trauma-informed legal processes emphasise choice, safety, and empowerment, enabling greater access to justice for people targeted by sexual violence broadly.

This feedback shapes several of the recommendations forming Circle Green’s submission, including:

• recommendation 13 –  the need for compulsory trauma-informed practice training to all members and staff of courts and tribunals that deal with sexual violence, and

• recommendation 14 –  the publication of a trauma-informed practice manual for conciliators and mediators who deal with workplace sexual violence matters in courts and tribunals.

Lived experience consultancy and case worker support

“The shame and stigma of what I had experienced was a lot… I didn’t know if I’d be believed. There was an unspoken ranking with victim-survivor experiences…I felt like what had happened to me wasn’t worth the time and attention of the courts based on the severity of the offence.” – LEAP member

Members suggested case worker support or lived experience consultants be made available by legal assistance services in addition to legal support. There is a clear need for a safe person who can be a source of guidance and comfort throughout the process of making a legal claim.

Recommendation 16 highlights the benefits of funding for legal assistance service providers to deliver integrated, wraparound, holistic non-legal support services, including the front-line social support such as social worker access.

Reform in use of confidentiality and non-disparagement clauses

“When you look at trauma healing… you get different information, so you’re battling a lot of different systems, that peer support thing is really important but there isn’t a lot of it because no one’s able to speak out …” – LEAP member

The LEAP reflected on the restrictive nature of non-disclosure and non-disparagement agreements normalising a culture of silence and contributing to feelings of isolation. One member noted that visibility of sexual harassment cases in the media prompted them to report their experience of sexual harassment, and that in hindsight, they may have also chosen to engage in a more public process with time.

This feedback guides recommendations 10 and 11 which urge placing legislative limits on the use of non-disclosure and non-disparagement agreements in relation to workplace sexual harassment matters, and the inclusion of model confidentiality and non-disparagement clauses in court or tribunal education resources, respectively.

An increased time limit for making all types of sexual harassment complaints

“Trauma makes it difficult for me to do things like type – when I can’t even type, it is a huge barrier when I can’t write down my timeline of experiences to report…” – LEAP member

The LEAP consistently identifies the 12 or 24-month limitation periods as a significant barrier for marginalised people in particular, as they do not accurately reflect the impact of serious trauma on a person’s ability to consider pursuing legal action.

This point is reflected in recommendation 22, which supports that the time limit for making all types of workplace sexual harassment complaints be increased to six years.

If you’re interested in learning more about our Lived Experience Advisory Panel, or would like to express interest in joining as a member, click here – we accept applications on a rolling basis, and prioritise workers representing groups most impacted by sexual harassment.

Disclaimer: Please be aware that this resource provides general information only. It is not legal advice. If you have a question about how the law applies to your specific situation, you can click here to request free legal assistance.