"Are you expecting secrecy?" The 4 red flags to look out for in workplace relationships.

In her timely new book, Power & Consent, Rachel Doyle SC uses the catalyst of the scandal involving allegations against Dyson Heydon, former justice of the High Court, to explore and understand the power relationships at the heart of the modern workplace, and to demand a new response to complaints of sexual harassment. She outlines a range of ‘red flags’ as a simple guide to assist potential perpetrators of sexual harassment to navigate interactions in the workplace.  

Women, if a male co-worker or supervisor propositions you or makes a lewd remark, are you prepared to be brave and transparent, raise the metaphorical palm of your hand up to his face and say, ‘Stop it! I don’t like it’?

Red Flags

I have also tried to think about these issues by answering the questions male lawyers have asked me: What are the rules? When is it permissible to flirt? Are you trying to legislate fun out of existence?

It is important to make the message clear and accessible and to avoid prudish morality. 

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I am not saying that two people who work together cannot fall in love, cannot date, cannot have a one-night stand.

But I do think that there are some metrics which may assist those who have difficulty reading what those around them want and do not want.

Perpetrators—this is for you! First, get out of your own head. You need to stop thinking about sexual experiences as if they are a game, and as if the women around you (including those in your workplace) are just the field upon which you play.

Think about the other person. Really think of them as a person. Exercise your own empathy muscles, or at least try to adopt her perspective. 

Ask yourself what does she want? How do you think she wants this meeting, coffee, lunch, presentation to unfold? Do you honestly believe she wants you to ask her to dinner, touch her leg, snap her bra strap, kiss her cheek, show her a dick pic? And if your preliminary answer to the above is yes, why do you think that? 

Now here, be honest with yourself. 

It is important that you do not make the mistake of assuming you are infinitely interesting and desirable. 

Remember, if you are senior to her, you may have spent years being in rooms with people who have to show you deference, need your patronage, seek your approval. 

It is possible that those more junior than you have even on occasion had to pretend to find what you say amusing or interesting. 

Is there a risk that her smile, her attention, her gaze are affected by a habit or need to seek your approval? 

Ask yourself if it is possible she is participating in or tolerating this lunch, your bawdy comments, your efforts at flirtation, or enduring your hand on her lower back, because she does not want to upset you or embarrass you by rejecting you?

Be honest—is there any chance she has said yes to this drink, or has failed to remove your hand from her back, because it is just so much harder to say no to you than it is to just let it go and pretend everything is OK?

After running through the above primer on ‘What does she want?’, I propose that anyone left in any doubt attempt to apply the following metrics, or ‘red flags’, in order to ensure you proceed with caution and in accordance with the law.

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First, are you older than the woman you are proposing to touch, kiss or proposition? Is that age gap significant, more than ten years? 

If so, the first red flag has gone up!

Second, are you more senior than her? Are you more than one rung higher up in the hierarchy? If so, your second red flag has gone up.

Third, ask yourself this question, and answer it honestly: do you hope (or even expect or require) that she will keep what is about to happen secret? 

If so, this is a huge third red flag.

To put it another way: will you be perfectly comfortable if, following this kiss, or lunch or fondle, she tells her mother, best friend, husband—or your colleagues—what has just happened? Or are you expecting (even requiring) her to keep it secret?

If you expect secrecy, then this is your biggest red flag.

If you get to this point and the red flags of age gap, seniority gap and insistence on secrecy have gone up, then be warned. You are entering high-risk territory. It may be sexual harassment. You need to be careful. You need to do your due diligence. 

If you genuinely believe that this much younger, more junior woman, who you expect to keep secret what is about to happen, is genuinely interested after applying the metrics I have suggested above, then you may proceed with caution.

The red flag approach may work for people with explicit power over their potential target. 

But what do we do about those who are about to say something or do something to a co-worker where there is no explicit power disparity?

Well first, I call bullshit on all the whingeing and fretting that taking a harsher stance on sexual harassment in the workplace will serve to cruel the pitch for what would otherwise be beautiful consensual relationships between people who just happened to meet in the office. 

I accept that many wonderful relationships start at work. 

But I can tell you that I also feel pretty confident in assuming that not many of those relationships started with a bloke leaning over a woman’s desk, taking her notepad and writing on it: ‘I just ripped a hole in my jeans … I don’t have underwear on … I can touch my penis through the hole.’

Nor do I think it very likely many great romances kicked off with a man looking at a female employee’s chest, making a growling noise, and saying: ‘I would like to chew on those.’ 

I also doubt that many romances have been successfully initiated by a man exposing his erect penis in the office.

I gotta ask: are these incidents really the tentative first moves of a great guy who just wants to test out whether someone he’s interested in might be willing to go see a movie with him? Are these really examples of a beautiful nascent courtship that humourless feminists are fixated upon wrecking? Come on. 

These smutty, demeaning incidents are not the result of some poor novice in love, bumbling his way through and getting it wrong. They are not the work of a misunderstood romantic.

An appeal court had no difficulty dispensing with such arguments advanced by a self-styled Mr Darcy in mid-2020. 

In Hughes Lawyers v Hill [2020] FCAFC 126, it had been found at trial that the supervising partner in a law firm had inundated a junior female solicitor with emails propositioning her and had, on multiple occasions, physically prevented her from leaving her own office unless she gave him a hug. 

Justice Nye Perram described the emails as ‘mawkish and altogether inappropriate’.  He went on to say: ‘I reject the submission of Senior Counsel for the Appellant that these were the actions of a Mr Darcy. The facts of this case are about as far from a Jane Austen novel as it is possible to be.’

This is an edited extract from Power & Consent by Rachel Doyle SC, published March 1 as part of the new In the National Interest series from Monash University Publishing.

Rachel Doyle SC is a barrister practising in Melbourne. She has been at the Victorian Bar since 1996 and was appointed Senior Counsel in 2009. She specialises in industrial and employment law, discrimination law, class actions and negligence. She has appeared in a number of royal commissions and inquiries, including as one of the counsel assisting team in the Victorian Bushfires Royal Commission in 2009.

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