Spotlight on workplace sexual harassment
A series of high-profile claims of sexual assault, harassment and sexist workplace culture has placed a spotlight on the issue across Australia. Is your policy and approach up to scratch?
If you manage staff, getting ahead of sexual harassment issues in the workplace is critical.
What is sexual harrassment?
It comes down to a piece of legislation called the Sex Discrimination Act 1984. The Act defines sexual harassment as “any unwanted or unwelcome sexual conduct, where a reasonable person would have felt harassed, offended, humiliated or intimidated."
It does not matter how conduct is intended, if a reasonable person could consider it sexual harassment, it is. And the conduct doesn't need to be specifically directed at the employee to qualify.
Employers can be held legally responsible for sexual harassment in the workplace, which is known as vicarious liability.
An employer may not be held liable for such incidents, however, if they are able to demonstrate they have taken all reasonable steps to prevent the conduct occurring in the workplace.
In Von Schoeler v Boral Timber, the employer was found to be vicariously liable and ordered to pay damages to a female employee, on the basis that they had not taken all reasonable steps to prevent the sexual harassment from occurring.
In the Federal Court decision, the employer argued that as they had a “Working with Respect” policy and had provided refresher training on sexual harassment before the incident occurred, they had taken all reasonable steps.
The Court, however, disagreed and found the training provided to employees only defined what sexual harassment is and didn't inform employees that sexual harassment is unlawful.
Additionally, the Court found the employer’s “Working with Respect” policy failed to state employees would be subject to disciplinary action if they were found to have engaged in sexual harassment activity.
How to respond to a sexual harassment complaint
All employers should have a sexual harassment policy in place that outlines the complaints and disciplinary process for managing sexual harassment in the workplace.
Ideally, a business should have a dedicated Sexual Harassment Officer as the first point of call for an employee to make a sexual harassment complaint.
Alternatively, if the business is not able to have a dedicated Sexual Harassment Officer, the Human Resources department or a relevant manager can be responsible for receiving such complaints.
If an employee or relevant third party complains of sexual harassment, it should be taken very seriously, and a formal investigation should be carried out.
It is crucial to maintain procedural fairness during the investigation process. In some cases, it may not be appropriate for employers to conduct the investigation themselves.
In such instances, you should consider engaging an independent third party to carry out the process.
Conducting a procedurally fair investigation may also assist employers in any subsequent claims that may arise.
"Marissa has a casual job as a Kitchen Hand in a hotel. The Head Chef has posters of topless women pinned all over the kitchen sink area. As everyone has the right to feel comfortable at work, the posters are inappropriate for the workplace. The employer should have had them removed, as pinned up, they contribute to a sexually hostile work environment."
Australian Human Rights Commission, 2002.
Preventing sexual harassment in the workplace
There are a number of steps you can take to prevent sexual harassment in the workplace. These include, but are not limited to;
- having a sound sexual harassment policy in place;
- clearly communicating to employees what sexual harassment is, and how and to whom they can make a complaint;
- outlining what the potential consequences are for breaching the policy;
- conducting training sessions for new and existing employees on the policy;
- ensuring managers are trained in how to handle complaints; and
- swiftly investigating any claims of sexual harassment.
Any changes to the company sexual harassment policy should be communicated to all employees and relevant parties.
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For CCIWA's expert guidance on the issue, contact the Employee Relations Advice Centre on 9365 7660.