Sexual harassment in the workplace - An Australian endemic
During July and August 2023 the nation suffered a severe bout of football-fever as Australia and New Zealand hosted the FIFA Women’s World Cup. 32 nations competed to see who would hoist the trophy at the end of the tournament. Our own Matildas experienced their best ever result at a football World Cup, but it was Spain who were the overall winners for the first time in their history, defeating England 1-0 in the World Cup final.
While La Roja’s win should have been the major talking point of the tournament, some of the shine has been taken off the World Cup triumph by the actions of Royal Spanish Football Federation (RFEF) President, Luis Rubiales, following the match.
After the game, and in front of a packed Stadium Australia, Rubiales, along with a number of officials and leaders, greeted and congratulated the players following their win. In the process of doing so, Rubiales kissed a number of players on the cheeks and then Rubiales grabbed star midfielder Jenni Hermoso by the head, pulled her towards him and kissed her on the mouth without her consent. Later, in the dressing room, Rubiales announced to the players that he would marry Hermoso in Ibiza. Rubiales was also seen grabbing his genitals in celebration of Spain’s win. Moments after Spain’s victory, and while standing near Queen Letizia of Spain and her 16-year-old daughter, Rubiales punched the air and pointed at the players before making the obscene gesture.
Rubiales’ post-match actions have been widely condemned. Notwithstanding video footage that leaves little room for doubt about what occured, Rubiales continually and strenuously denied any wrongdoing, initially labelling his kiss on Hermoso a “mistake” and offering a half-hearted apology. However, he then dug his heels in, insisting that the kiss on Hermoso was consensual and that he was the subject of an “unprecedented political and media lynching”. In Rubiales’ statement he noted that he had “made some obvious mistakes, which [he regretted] sincerely” before stating that the kiss was “a mutual and consented act, the product of great enthusiasm” and that “at no time was there any aggression, indeed, there was not even the slightest discomfort, but an overflowing joy in both”.
Hermoso, in a statement released by players’ union FUTPRO, said she was “vulnerable” and “the victim of an agression”. She stated, “I want to clarify that, as was seen in the images, at no time did I consent to the kiss he gave me…I do not tolerate that my word is questioned and much less that words that I have not said are invented”. She described Rubiales’ words as “categorically false and part of the manipulative culture he has created”.
Initially the RFEF stood staunchly beside Rubiales, releasing a statement saying, “The evidence is conclusive. The President has not lied” and accused Hermoso, or someone on Hermoso’s behalf of lying before threatening legal action. The RFEF released a statement backing Rubiales and claiming Hermoso’s version of the story was incorrect with a lengthy response including breakdowns of the kiss image to support the notion of Hermoso initiating the kiss. They also threatened legal action against Hermoso.
Rubiales refused to stand down over the incident, even after he was suspended by global governing body FIFA for 90 days while a disciplinary investigation took place. His staunch defence of his actions were met with vigorous applause following a meeting in late August and then his own mother locked herself in a church vowing to go on a hunger strike in protest of the “witch hunt” against her son.
Spain’s highest court has now opened a preliminary investigation into whether Rubiales’ actions could constitute an offence of sexual assault.
After weeks of criticism, Rubiales resigned as the President of the RFEF and from his postion as vice president of UEFA on 10 September 2023. He has refused to apologise to Jenni Hermoso maintaining that the kiss was “consensual”. The RFEF has subsequently apologised for the “enormous damage” caused by Rubiales’ actions.
Sexual harassment in the workplace
Sexual harassment continues to be an unacceptably common experience in the Australian workplace. It can take many forms including sexually suggestive jokes or comments, intrusive questions about a person’s personal life or appearance, being leered or stared at or subjected to inappropriate physical contact such as unwelcome touching, hugging, and/or kissing.
A 2022 survey by the Australian Human Rights Commission (AHRC) revealed that 1 in 3 workers (33.33%) experienced sexual harassment at work in the last 5 years. Women (41%) were far more likely than men (26%) to experience sexual harassment at work. Half of incidents are repeated and, of those, half are ongoing for more than 12 months.
The way that the Rubiales/Hermoso incident has played out is a common experience for many victims. Most do not come forward to report harassment or abuse. The AHRC survey found that reporting of sexual harassment in the workplace remains low with only 18% of incidents being reported.
Victims are often discouraged from pursuing an allegation particularly in circumstances where there is no third-party evidence to substantiate the complaint. As the Hermoso case demonstrates, even where there is clear video evidence of an incident and it is witnessed by millions of people, a victim can still be disbelieved and told they are mistaken. This is classic gaslighting.
Sexual harassment is prohibited in the workplace and Australian law now creates a positive duty for employers to prevent it from occuring. The new laws are aimed at providing greater protection for workers.
What can I do if I have been sexually assaulted or harassed at work?
Sexual harassment is unlawful and creates a right for the victim to pursue remedies in the Fair Work Commission as well as a right to sue for damages. Additionally, if the sexual harassment or assault has occurred in the workplace you are entitled to bring a WorkCover claim.
At TPIL Lawyers, our dedicated team of lawyers are able to advise you and assist you to obtain the proper compensation that you deserve. We regularly provide advice and representation to workers who have experienced sexual harassment or sexual assault in the workplace. If you would like to find out more about your rights, please contact us on 1800 958 498 or help@tpil.com.au for a confidential, obligation-free discussion.
