During the conversation about what Rush’s defamation trial means for sexual harassment claims, let’s not forget we already have some solutions.

It’s deeply unfortunate that perhaps the most significant workplace sexual harassment case to make it to court in Australia in the #metoo era did so in a trial about defamation. And now the conclusion of the trial seems to have confirmed the worst fears of many.

Reading the reports on the trial’s outcome – Geoffrey Rush has won damages against Nationwide News for two articles published by the Daily Telegraph that strongly implied he was guilty of sexual harassment – most see only negative repercussions.

In the US, the #metoo movement has been fueled by the work of journalists and the victims willing to talk to them. In Australia, there are concerns that this case will be fatal to that dynamic. The person who alleged sexual harassment, actress Eryn Norvill, who eventually (reluctantly) testified at trial, was labeled by the judge as a witness prone to “exaggeration and embellishment”.

As Sydney Morning Herald journalist Kate McClymont told Media Watch, “Given the judge’s harsh comments about Eryn Jean Norvill in the Rush case, it is going to be very difficult to get anyone to go on the record. As a female victim, why would you want to subject yourself to this kind of public excoriation?”

But relying on the media to address harassment has always been a fraught proposition. The Australian Human Rights Council report on workplace sexual harassment show it’s very widespread, encompassing all industries and demographics. However, unless the victim or the perpetrator are famous or powerful, it’s difficult for journalists to convince their editors that a story is worth the considerable time and money it takes to adequately investigate it.

HRM has written about the limitations of dealing with sexual harassment at work, and the bind that HR professionals are caught in when it comes to trying to investigate it. Yet, as things currently stand in Australia, organisations attempting to deal with sexual harassment internally is still the best option for most victims.

That being the case, what can be learned from the Geoffrey Rush trial?

A workplace failure

It seems odd to have to point it out, but the acting profession is not like others. If you’re an actor, it can quite literally be your job to embrace, kiss, and simulate sex. The potential for blurred lines of consent and inappropriate behaviour is huge. Case in point, Norvill accused Rush of lasciviously pretending to grope her body during rehearsal, and of touching her inappropriately during a performance (in front of an audience but upstage where they couldn’t see).

In the former, you see how the culture of performance can lead to behaviour with which people might not be comfortable. In the latter, how the requirement that actors touch each other could be abused.

Combine these blurred lines with nighttime performances, a temporary, ever changing workforce, and an artistic culture that often values cultural transgression, and it seems obvious that every company that engages actors should have a robust system for dealing with harassment complaints.

Despite this, the Sydney Theatre Company (STC) – which produced the production of King Lear during which the harassment is said to have taken place – has not faced much critique for its HR processes.

Initial concerns

It was a point of contention during the trial as to whether or not Norvill spoke up while actually working on the play. She says she did not explicitly complain about sexual harassment, but rather expressed general greivances. But numerous things came out at trial that might seem familiar to someone in HR.

• Norvill did not feel comfortable complaining to her ‘manager’ (the director of the play) because of his close personal relationship (a 30 year friendship) with the person she felt was harassing her
• Norvill says she didn’t appeal to higher ups in the company because she “didn’t know how to access the pathways … of support”
• Norvill said she found it generally difficult to complain because there was a culture that seemed accepting of Rush’s behaviour

All these things might have been remedied by a system that allowed for complaints (anonymous and otherwise) to be made, and policies that required all workers to be educated on complaints procedures. They could have been further aided by the existence of bystander training and a sturdier hand on organisational culture.

Informal complaints and paper trails

Before Norvill made any explicit complaint, the company manager (this role supports the director, and could be considered to have HR responsibilities) appears to have noticed that Norvill was suffering on the night of the final performance. She approached Norvill, who said she didn’t want to talk about it yet. She later corresponded with Norvill, offering further support and directing her to counselling services.

Finally they met in an Annandale pub where Norvill made informal complaints that she had been, on multiple occasions, sexually harassed by Rush. Norvill would later claim that both her and the company manager “drank a lot” while they were talking.

As an aside, this meeting highlights something that doesn’t often get talked about – the deeply informal way difficult things can sometimes come to light. While it might be nice if everything happened by the letter, when it comes to the things that hurt us most, humans are anything but bureaucratic.

It’s unclear whether at this point Norvill had a formal employment relationship with STC, but she did work for the company in a production of All My Sons a few months later. Regardless, the company manager considered the matter serious enough that she wrote a detailed email to the STC’s executive director and its director, programming and artistic operations.

According to the judgment this email “contains the only contemporaneous documentary record of any complaint made by Ms Norvill to the STC”. This is surprising because the email led to a second meeting with one of those senior officers, the STC’s casting director, Norvill and Norvill’s agent. Just as surprisingly this meeting also took place in a pub.

As the judgment then reads, “Nobody who attended that meeting made a contemporaneous record or note of the discussions. An email Ms Hill [the casting director] sent to Mr McIntyre [the executive director] over eighteen months later noted that Ms Norvill had said that she did not want to make a ‘formal complaint’ and that the meeting was ‘off the record’. Ms Mann and Ms Hill were not called to give evidence.”

Needless to say, this sort of ad hoc approach to very serious matters harms victims, alleged perpetrators and organisations. Even if a worker wants to avoid a “formal complaint”, it’s very risky to not keep records of a meeting where your duty of care as an employer is coming under fire.

For instance, how certain can you be about the formality of a complaint? If someone later claims they told you about harassment by someone you hired, and claims you did nothing, what evidence do you have to support your inaction? Not to mention the reputational harm that can arise if your inaction becomes evidence in a court of law.

Also, if an accusation is this serious, it’s worth asking whether it doesn’t deserve further conversations with the complainant. You don’t need to compel them to make a formal complaint, but you can find out more. 

Why aren’t they making a formal complaint? Is it because of personal reasons, or is there an implicit criticism of your organisation that you’re missing? And, on a different front, can you afford to not perform some form of preliminary investigation to see if there are other people who have similar complaints?

Being too quick to drop a matter is a dangerous proposition, and a worrying sign about the culture of an organisation. From the judgement, it appears that Rush first heard of the complaint years down the line, when he called the STC following a comment from a journalist. The totality of the STC’s actions on this matter appear to have been an email and two meetings. The only other evidence was the recollections of employees. Based on that alone, what kind of culture would you assume the STC had?

Answers

The above shouldn’t be read as too much of a condemnation of the theatre company, which has from all reports made efforts to address its HR shortcomings. The purpose is to point out the importance of having a strong HR function. It’s pretty clear from the evidence in the judgement, and her reluctance to speak at trial, that Norvill’s main intention was to address the behaviour discretely and in-house. There are companies where this would have been done in a way that made her feel supported.

So while we should definitely be having a conversation about how Australia can get better at handling workplace sexual harassment, it’s important to remember that we already have made progress. None of them are close to perfect, but workplace investigations work; robust complaints systems work; training works; and cultural change, including increasing diversity in leadership, works.

We have some of the answers, we just have to implement them.