Managing the Risk of Sexual Harassment
Implementing policies and staff training around harassment are important, but enforcement is crucial. Employers must be prepared to take direct action when required, advises employment law specialist Elizabeth Radley.
A number of high-profile sexual harassment scandals in the media and entertainment industry in late 2017 attracted global attention, but these headline cases were far from unique. Despite the existence of laws prohibiting sexual harassment at the workplace – which have operated throughout Australia for more than 30 years – it continues to be a prevalent issue across all industries, with both women and men affected. All employers, irrespective of size, must have an understanding of what the law requires and how to manage (and, ideally, prevent) sexual harassment in the workplace.
What constitutes sexual harassment?
A person sexually harasses another if he or she makes an unwelcome sexual advance or an unwelcome request for sexual favours to the other person, or engages in any other unwelcome conduct of a sexual nature, in circumstances where a reasonable person would expect the other person to feel offended, humiliated or intimidated.
Sexual harassment is prohibited under the federal Sex Discrimination Act 1984 (Cth) and corresponding State legislation, such as the Anti-Discrimination Act 1977 (NSW) and the Equal Opportunity Act 2010 (Vic). This means it is unlawful in certain circumstances, including where it occurs in connection with employment or in relation to the provisions of goods and services.
In recent years, Australia has seen a significant increase in compensation awarded for unlawful sexual harassment at work, which Courts have said reflects a change in community standards and expectations.
How can an employer manage the risk of sexual harassment?
The best place to start is in implementing policies, grievance procedures and staff training, which clearly sets out the meaning of sexual harassment at work, emphasises that it is against the law and identifies the source of that prohibition (that is, by referring to the applicable State and federal legislation).
However, cases demonstrate that an employer should not stop there, as Courts also expect to see that suitable supervision arrangements are in place, and that appropriate discipline is taken where sexual harassment occurs. This gives effect to the employer’s policies and procedures, and demonstrates the consequences that can arise when a breach occurs.
In addition to seeking to avoid sexual harassment at the workplace, these measures can also assist if a legal claim arises. Where an employer can show it has taken ‘all reasonable steps’ to prevent sexual harassment from occurring, this can provide a defence if a worker engages in such conduct nevertheless and the aggrieved person alleges the employer is vicariously liable for the unlawful actions of his or her employee.
Responding to sexual harassment
Policies, procedures and staff training should also inform employees of their right to make a complaint about sexual harassment should they feel this has occurred. The complaint handling process should be documented and identify how concerns can be raised, as well as provide an outline of the various stages of the complaint process – for example, it should ideally:
- indicate several (or at least more than one) contact officers to whom a complaint may be made;
- indicate how the complaint will be documented;
- identify informal and formal means by which the complaint may be addressed (for example, a mediation or facilitated discussion between the parties might resolve the concern, or it may be necessary for a formal investigation to take place);
- confirm who will carry out any investigation into the complaint (if required), which may include an external consultant; and
- confirm that where the complaint is formally investigated, each of the parties will have an opportunity to provide information to the investigator regarding the allegations before any outcome is determined.
If a complaint of sexual harassment is made it should be taken seriously and dealt with promptly, no matter how trivial it may seem. Once a documented complaint handling process has been established, it is also important that any concerns raised are managed in accordance with the procedure as implemented.
Ensuring confidentiality is a key component of any complaint handling process, and procedures should be put in place to ensure all written material and other information regarding allegations of sexual harassment is maintained in a confidential manner and is not accessible to anyone other than those who have a genuine need to know in order to deal with the complaint. However, despite the need for confidentiality, care should be taken not to guarantee that a complainant’s identity will be withheld from the person against whom the complaint is made. In order to ensure procedural fairness, the respondent must be given sufficient information about the allegations so as to enable a proper understanding of the complaint against them, and be afforded an opportunity to respond.
Complaints should be managed in an impartial manner, with all parties involved treated fairly and kept informed of the progress of the matter. Measures should also be implemented to prevent victimisation of complainants, including by stating in policies and complaint handling procedures that conduct amounting to victimisation is unlawful and is strictly prohibited.
Finally, the obligation of an employer to respond to concerns about sexual harassment is not limited to situations where a formal complaint has been made. If an employer’s senior managers are aware of sexual harassment occurring in the workplace but no action is taken to address it, including by the employer making its own enquiries if necessary, then the organisation can be found to be vicariously liable for the unlawful actions of its employees. Sexual harassment can also give rise to personal liability for an individual who engages in such conduct, or for an accessory who aids or otherwise permits the behaviour to occur.
Further information and resources regarding the prohibition and prevention of sexual harassment is available from State and federal agencies, including the Australian Human Rights Commission.
Elizabeth Radley is a partner with Moray & Agnew Lawyers. She has specialised in all aspects of workplace law and industrial relations for over 15 years, working closely with employer clients from a broad range of industries, including building and construction, manufacturing, transport, retail, finance and essential services. Elizabeth has particular expertise and experience in equal opportunity and discrimination matters including assisting employers in developing risk management strategies, such as preparing and implementing workplace policies and procedures as well as conducting workplace training.