Australia: Sexual Harassment - Lessons From Recent Cases

Originally published 22 October 2004

In an age where sex sells and the TV viewing public is constantly bombarded with images or innuendos of sex, claims of sexual harassment continue not surprisingly to attract the public attention and when they do, they can have a very negative impact on a company's reputation.

We look at some recent examples of the measures that employers need to take to avoid vicarious liability for sexual harassment. These cases demonstrate that it is not sufficient simply to respond to a complaint but that preventative action is required. Similarly, it is not enough to just have a sexual harassment policy, particularly if it is not properly integrated into the workplace.

The active steps employers should take as a minimum include:

• having a sexual harassment policy (which might form part of a broader equal employment policy) and updating it from time to time so that it remains relevant and not static
• ensuring staff are aware of the company's sexual harassment policy (eg. induction training) and that they are regularly trained on the policy (eg. one on one training to formal training);
• ensuring staff understand what constitutes sexual harassment and that it is unlawful; and
• monitoring the workplace to ensure that the policy is being actively implemented into the workplace.

HREOC's new Code of Practice also offers valuable guidance (see our article in this edition).

How a company responds when a complaint of sexual harassment is raised is also important. The manner in which a complaint is investigated and responded to must be appropriate.

Factors which an employer should have regard to include:

• prompt investigation of the complaint;
• ensuring that the investigation procedure is confidential and impartial and without victimisation; and
• appointing an investigator who has the necessary skills and experience to deal with sexual harassment complaints and to conduct investigations (be they in-house or external).

Failure to ensure that reasonable steps or precautions have been taken can leave an employer exposed to liability. The aftermath of the sexual harassment (eg. psychological damage and future employment prospects) can also increase the potential liability for an employer.

Recent cases continue to emphasise the importance of preventing an emergence of a workplace culture that is conducive to sexual harassment (click here for summaries). For example, in Coughran the preoccupation with sex at the workplace created an environment that was hostile to the prevention and reporting of sexual harassment. In Dee the NSW Police Service was found vicariously liable because it failed to adequately educate its staff about harassment.

Reports in the media earlier this year on Westco Jean's directive to staff to wear T-shirts with provocative slogans illustrated how "cool" or "fun" workplaces can cut across sexual harassment laws and, indeed the wider scrutiny of the consuming public.

The recent decision of Webb also highlights the importance of recognising that sexual harassment laws extend beyond the "four walls" of the employer.

Often workplaces have to determine how to strike the balance of what is friendly workplace banter and when it steps over the line and becomes unlawful conduct. Striking this balance is vital particularly in traditionally "fun" industries or work environments. The recent case of Bishop highlights the consequences of getting it wrong and the harm which can come about.

Recent decisions dealing with what constitutes "reasonable steps" or "reasonable precautions" provide guidance on how employers should deal with, and respond to, sexual harassment in the workplace. In this article, we discuss three cases which deal with the increasing trend to outsource investigation of complaints (Asnicar) how not to respond or investigate a complaint (Denmeade) and determining what is "reasonable" in "reasonable steps or precautions" (Howard).