IGEA Presents Respectful Workplaces Webinar

29
Jul

No one in the games industry should ever be the victim of harassment, unwanted attention, or unwanted physical contact. IGEA’s Code of Conduct, as well as the Codes of Conducts associated with the Arcade and GCAP make it very clear what constitutes appropriate behaviour – and what not.

As abuse and harassment allegations surface, individuals need to recognise and commit to being better and more responsible industry players. For senior industry members in particular, there is an obligation to be above reproach, model the behaviours and standards the industry deserves and always protect those who are more vulnerable.

Regardless of hierarchies, positions held or years of experience in the games industry, it is important to have consistent, ongoing education and conversations about inappropriate behaviour. People need to be held accountable for their actions and we need to do our best to protect those in our space that need it most.  It starts with listening, believing, respecting and assisting those being victimised.

We need to ensure that we educate and connect them to the appropriate services and support mechanisms available. To that effect, we have collated the following resources to offer guidance and educate both employers and employees in creating a safer, more welcoming, and inclusive environment but also where to turn and find support when they experience inappropriate behaviour.

To that end, we organised a webinar with Diversity Australia on respectful workplaces. It is a valuable tool in helping to making workplaces free of incidents involving sexual harassment and bullying.

This Program is suitable for staff at all levels and is relevant for all workplaces, aiming to educate generally about the negative impacts of harassment and also to challenge widely held misconceptions about what sexual harassment is.

Watch it below:

We also collated a range of written resources. If you are a small studio that has only just started or a medium-sized studio that needs guidance on its HR practices, they offer guidance on how to create a harassment-free workplace – and why it is in your best interest – and in the interest of your employees – to do so.


*Disclaimer*

This resource is not a substitute for legal or medical advice or professional counselling, and following these recommendations may come with its own risks. We provide the information on this site as a service and makes no warranties regarding the same, nor has IGEA necessarily vetted any particular resource. The presence of links does not constitute a referral or endorsement by us and we assume no liability for use of the information or resources on this site. Use your own best judgment in determining the best course of action for your own safety, professional reputation, and well-being.

Additionally, please keep in mind that these recommendations and definitions are meant for those who genuinely feel they are in crisis. The intention is not to audit the validity of the harassment being experienced; we have created this space with the assumption that you alone are best equipped to know whether you are being harassed and whether you need to take action, and that your judgment and needs take priority when dealing with your own experience. Legal definitions and recourse may mean little in the face of the emotional cost of harassment, so our hope is to help mitigate some of the harm and distress you may be experiencing by providing you with these resources.

(Disclaimer source.)

What Constitutes Harassment?

The legal definition of sexual harassment in Australia is “an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated, where a reasonable person would anticipate that reaction in the circumstances” (source).

Examples of sexual harassment harassing behaviour include:

  • unwelcome touching;
  • staring or leering;
  • sexually explicit pictures or posters;
  • unwanted invitations to go out on dates;
  • requests for sex;
  • intrusive questions about a person’s private life or body;
  • unnecessary familiarity, such as deliberately brushing up against a person;
  • insults or taunts based on sex;
  • sexually explicit physical contact; and
  • sexually explicit emails, text messages or social media messages

Sexual harassment is not just confined to the games industry: one in four women (25%) are sexually harassed in the workplace. And even though women comprise the overwhelming majority of people sexually harassed in the workplace, a 2012 survey found that men sexually harassing other men is increasingly common and accounts for nearly a quarter (23%) of all sexual harassment in the workplace (source).

“Workplace” in this instance is defined as the place

  • Where the harasser works
  • Where the person being harassed works
  • Where they both work

This also includes the location of someone working remotely who is harassed online or over the phone, work-related trips, work-related social events, and training facilities.

It is also important to note, given prevalent employment contracts in the games industry, that independent contractors – just like casual workers, commission agents or prospective employees – enjoy the same protections from harassment as a full-time employee.

While harassment is simply not acceptable on any level, there is an element of subjectivity to the associated notion of unwelcome conduct, i.e. conduct that is not solicited or invited and is regarded by the target as undesirable or offensive.

Sexual interaction, flirtation, attraction or friendship that is consensual and invited, mutual or reciprocated is not considered to be unwelcome conduct under the law. Accordingly, courts will consider a range of factors that may affect an individual’s ability to communicate the unwelcome nature of the conduct, such as youth and inexperience, fear of reprisals and the nature of the power relationship between the two parties.

What is irrelevant is that the conduct may have been an accepted feature of the workplace in the past: Employers have an obligation to deal with entrenched group cultures and practices – often prevalent in non-traditional or male-dominated workplaces – that may hinder participation in, and enjoyment of, working life.

Resources for Employers

Liabilities

Failing to address these concerns carries a range of liabilities for an employer:

  • personal liability for sexual harassment, i.e. individual managers and employees being liable for their own acts of sexual harassment
  • accessory liability for sexual harassment i.e. employers causing, instructing, inducing, aiding or permitting another person to engage in sexual harassment
  • vicarious liability for sexual harassment, i.e. employers being held liable for sexual harassment committed by their employees in connection with their employment
  • liability for victimisation of a person in connection with a complaint of sexual harassment, i.e. subjecting or threatening to subject another person to detriment in the workplace if they have taken action in relation to a harassment claim

In addition, and depending on the nature of the harassment in the workplace, employers can be held liable for criminal offences, claims under the Fair Work Act, including ’General Protections’ claims and unfair dismissal, breach of contract, and breach of work, health and safety requirements.

Addressing Harassment

As becomes evident, it is in employers’ best interest to forcefully address the issue of sexual harassment. So, what are some steps that they can take?

It all starts with sending an unequivocal message to every workplace participant that sexual harassment will not be tolerated. The first step toward sending this message is creating a work environment that is healthy, safe and based on courtesy and respect.

Permitting or ignoring sexist, intimidating or offensive behaviour creates a chilly or hostile environment. This can increase the risk of sexual harassment and have a significant and ongoing negative impact on employees and business as a whole.

Employers need to take positive steps to create an environment that takes harassment seriously by:

  • distributing communications from senior leaders that sexual harassment is unlawful and will not be tolerated in the workplace;
  • setting expectations for senior leaders to model appropriate behaviour and respond swiftly and effectively to sexual harassment complaints;
  • responding promptly to any concerns raised;
  • ensuring workplace policies prohibiting inappropriate use of technology address sexual harassment;
  • distributing and displaying posters and pamphlets that explain rights and obligations around sexual harassment;
  • conducting regular audits to monitor the incidence of sexual harassment and the effectiveness of the complaint process.

The responsibility for a workplace free of harassment is a shared one, bystanders, people who see or hear about harassment in their workplace, need to be encouraged – and supported – to report any inappropriate or sexist behaviour to their manager, supervisor, or HR. Almost half of workplace sexual harassment stops after a complaint or report is made (source).

For further information and resources, such as posters, check Know The Line and ten steps you can take to create a fair and productive workplace.

Workplace Policies

Another crucial aspect of harassment prevention is the development and implementation of a written workplace policy that makes it clear that harassment will not be tolerated under any circumstances.

It should:

  • Include an opening statement from senior management that recognises the principles that underpin a healthy workplace;
  • Recognise that sexual harassment is unlawful and highlight the legal consequences of breaking the policy/law;
  • Identify strategies for addressing sexual harassment, such as the actions outlined above as well as explaining complaints procedures, treating all complaints in a sensitive, fair, timely and confidential manner and guaranteeing protection from victimisation;
  • Clearly define what constitutes sexual harassment, i.e. unwelcome conduct of a sexual nature as opposed to invited, mutual, consensual or reciprocated conduct
  • Identify the responsibilities of management and staff; and
  • Outline the available options for dealing with sexual harassment, such as the complaint procedure and sources of support and advice such as the Human Rights Commission.

Another crucial strategy is the provision and facilitation of education and training on sexual harassment, including the dissemination of the workplace policy at meetings and via email, and using it as part of the induction process. In respect to training, Employers should consider taking advantage of the resources offered by various state agencies, such as:


Dealing With Claims of Harassment

How do employers best respond when faced with a claim of sexual harassment?

There are three key components to this:

  • establishing and implementing an internal complaint procedure
  • investigating sexual harassment complaints and taking appropriate remedial action
  • keeping confidential records of complaints

The purpose of an internal complaint mechanism is to provide an opportunity for a complaint to be made by an employee and for the employer to investigate the complaint, take action to address the situation and resolve the complaint, where this is appropriate. While there is a degree of flexibility depending on the size and nature of the company, it needs to follow some key principles. It needs to be:

  • Fair – This means that both the person complaining (the complainant) and the person being complained about (the respondent) should have the opportunity to present their version of events, provide supporting information and respond to any potential negative decisions. In addition, the person investigating and/or making decisions about the complaint should be impartial; that is, they should not favour the complainant or the respondent or prejudge the complaint in any way.
  • Confidential – This means that information about a complaint is only provided to those people who need to know about it, in order for the complaint to be actioned properly.
  • Transparent – The complaint process and the possible outcomes of the complaint should be clearly explained and those involved should be kept informed of the progress of the complaint and the reasons for any decisions.
  • Accessible – The complaint process should be easy to access and understand, and everyone should be able to participate equally. For example, an employee may require a language interpreter to understand and participate or a person with a disability may need information provided in a specific format.
  • Efficient – The complaint process should be conducted without undue delay. As time passes, information relevant to the complaint may deteriorate or be lost, which will impact on the fairness of the process. In addition, unresolved complaints can have a negative and ongoing impact on a workplace.

Moreover, an employer must provide safeguards to protect against victimisation of staff speaking up.

In the meantime, responsible managers must not:

  • Let the behaviour continue.
  • Make any assumptions about the validity of the complaint before it has been investigated.
  • Assume that the best option is to transfer the person making the complaint
  • Leave the person making the complaint in a potentially dangerous or stressful situation.
  • Tell the person making the complaint to ignore it; most cases get worse when ignored.
  • Blame the person complaining; they should not feel guilty for complaining about harassment.
  • Delay action
  • Involve too many people


Contact & Complaint Officers

To facilitate the process, an employer should also identify employees to act as contact or complaint officers. These will act as the first point of contact for colleagues who alleges sexual harassment. They should be recruited from all genders and undergone training for handling these types of complaints.

Their primary role is to listen to the complaint and provide information about available resources and procedures and assist the complainant or the alleged harasser by acting as a support person.

(On the other hand, they should not: investigate the complaint; counsel the complainant or alleged harasser; present the case for the complainant or alleged harasser at meetings or inquiries; support both parties at the same time; recommend a particular course of action or pre-empt outcomes; or unnecessarily disclose information about the complaint.)

Complaint officers, on the other hand, take an active role in managing sexual harassment complaints and usually have a relatively senior status within an organisation.

It is crucial that employers act immediately to conduct effective investigations into individual complaints of sexual harassment and, where appropriate, provide remedial action.

For more information, including various resolutions, from early resolution to formal resolution, as well as outcomes from the process, disciplinary action, official warnings, see good practice guidelines for internal complaint processes.

Victims of Harassment

What can you do if you’ve been harassed at your workplace?

The Australian Human Rights Commission recommends the following courses of action:

  • Raise the issue directly with the harasser and tell them that their behaviour is unwelcome
  • Talk to a colleague or contact officer for support
  • Talk to a union delegate or contact a union office for advice
  • Contact 1800 RESPECT for telephone and online counselling, information and referral
  • Contact a community legal centre or working women’s centre for legal advice
  • Make a complaint to your manager/employer
  • Contact the Australian Human Rights Commission for information or to make a complaint.

There are also stated based agencies that offer advice and support:

Taking action is one of the most effective ways to make sexual harassment stop. 45% of workplace sexual harassment stops after a complaint or report is made. Moreover, it is unlawful for an employee to be disadvantaged because they’ve reported sexual harassment.

Please note that the Human Rights Commission is not a court and cannot decide if a complainant has been sexually harassed. The Commission’s role is to get both sides of the story and, where appropriate, will invite the complainant and respondent to participate in conciliation, i.e. an informal process that allows the complainant and respondent to talk about the issues in the complaint and try to find a way to resolve the matter.

Conciliation is not like a court hearing. The conciliator does not decide who is right or wrong and the conciliator does not decide how the complaint should be resolved.

If the complaint cannot be resolved, the complaint will be terminated. Once a complaint is terminated, the complainant has the option of applying to the Federal Circuit Court or the Federal Court of Australia for the court to hear the allegations in the complaint.

Harassment Outside of the Workplace: Online Harassment

One type of harassment that, unfortunately, is way too common in the game industry is online harassment. The challenge is that “cyberbullying” does not constitute a distinct offence under Australian legislation and that each state has similar but varying definitions.

That said, generally speaking, the use of mobile phones, email or social networking sites to harass or abuse a certain person or group of people can constitute a criminal offence when characterised as:

  • Using the internet or a device to threaten, harass or offend another person
  • Stalking
  • Intimidating or threatening conduct
  • Inciting or counselling a person to commit suicide
  • Defamation
  • Accessing online accounts without authorisation


The International Game Developers Association (IGDA) offers an excellent resource to support people who have experienced online harassment: It gives advice on what to do if you are the target of harassment, online security, mental wellness and self-care but also offers guidance for family and friends and advocates and allies.

The IGDA’s focus is primarily the US and Canada. Find below resources specific to Australia:


Links to All Resources

Find below links to all the cited resources:

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