Australia: Risky Business: Six steps for preventing and managing sexual harassment in the workplace

Workplace sexual harassment creates significant legal exposure for employers, but it can also have a devastating effect on the health and wellbeing of employees, damage personal relationships and ruin careers.

Just by way of an example, last year, an employer was ordered to pay $1.3 million to a former employee in connection with a sexual harassment claim.1

In this article, we set out six practical steps employers can take to effectively prevent and manage sexual harassment in the workplace.

STEP 1: UNDERSTAND IT

Put simply, sexual harassment is conduct of a sexual nature that is unwelcome in circumstances where a reasonable person would have anticipated that the other person would be intimidated, offended or humiliated. It can include:

  • suggestive or derogatory remarks;
  • unwelcome sexual advances;
  • harassing phone calls;
  • spreading rumours of a sexual nature;
  • repeated unwelcome questions about someone's personal life;
  • unnecessary physical contact;
  • staring or leering in a sexual manner; or
  • displaying or distributing material that is sexist, sexually explicit or has overtones related to sex or sexuality.

Further, it's important to keep in mind that sexual harassment can occur as a result of a single incident or a series of incidents, or from conduct that was previously welcome or consensual. It can also happen in the office, outside the office, at a client's site or at a work-related function or via telephone, text, email or social media. There just needs to be a relevant connection with the employee's employment.

Sometimes, it can be assumed that women are the only victims of sexual harassment. Employers should keep in mind that men can also be subject to unwanted behaviour of a sexual nature and that women can be perpetrators of such behaviour.

Under the Sex Discrimination Act 1984 (Cth), employers can be held responsible for sexual harassment unless they have taken all reasonable steps to prevent and redress the harassment. Sexual harassment in the workplace can also result in a range of other civil claims, and potentially criminal proceedings.

STEP 2: TALK ABOUT IT

Assuming that everyone understands what is and isn't acceptable behaviour in the workplace in 2016 is a mistake. In addition to written policies, employers need to ensure that employees understand what constitutes acceptable conduct in the workplace.

The most effective way to do this is to require all employees to attend regular training sessions. This training should:

  • explain clearly what is meant by sexual harassment in the workplace;
  • provide frank and relevant examples of unacceptable behaviour;
  • clarify the potential consequences for employees who engage in sexual harassment; and
  • identify the steps that employees can take if they feel they have been sexually harassed in the workplace.

When providing examples of unacceptable behaviour, employers should:

  • focus on their workforce specifically;
  • consider where the risks may arise; and
  • provide examples of conduct that will resonate with employees.

Employers should also ensure that separate, specific training be provided to managers, so they are equipped to handle allegations of sexual harassment and identify and respond to inappropriate behaviour in the workplace.

STEP 3: MAKE IT YOUR BUSINESS

Sexual harassment laws are not designed to prevent employees from entering into consensual personal relationships with work colleagues, and employers do not need to interfere in the private lives of consenting adults. However, employers should be aware that consensual personal relationships can end with allegations of inappropriate behaviour and create legal exposure.

Therefore, employers should consider what their policy is on relationships within the workplace. For example, would it be prudent to put a policy in place which requires disclosure of these relationships? A policy such as this can assist an employer to understand the nature of the relationship, and also allow them to put in place structures to reduce the risk of future claims.

For example, if the relationship is between direct reports, putting in place alternative reporting structures will reduce the risk of allegations of unfair conduct if the relationship subsequently breaks down. Alternative reporting structures will also reduce the risk of claims from other employees that the relationship has impacted negatively on them.

STEP 4: LOOK OUT FOR THE WARNING SIGNS

Employers often make the mistake of thinking that there has to be a formal allegation of wrongdoing before making an enquiry into an issue. This kind of approach is risky, because matters can escalate quickly, resulting in a legal claim that could have been avoided.

Employers need to keep their ears to the ground and have an understanding of how employees interact in the office, on site and outside the workplace. If there is a suggestion of inappropriate conduct, don't wait for someone to complain about it. Even if the conduct is reported as being 'in good fun' (such as an initiation ritual) it should be looked into regardless. If it's found to be conduct that could fall foul of the law, put steps in place to ensure that it stops and does not occur again.

STEP 5: PUT NOMINATED CONTACT OFFICERS IN PLACE

Employers should consider putting nominated contact officers in place within their business, whom employees can approach if they feel they have been sexually harassed.

The role of a contact officer is to support the person wishing to raise an issue to understand what options are available to the person, not to investigate the complaint or resolve the issue. Where possible, contact officers should be from diverse backgrounds (in terms of sex, age and level/position within the company) and people who are respected in the business.

Contact officers should also be provided with appropriate training. This is particularly important when it comes to handling matters where the employee who raises the allegation indicates they do not wish for the matter to go any further. Contact officers and managers need to understand which matters should be brought to the attention of the employer.

STEP 6: BE PROMPT, THOROUGH AND SMART ABOUT INVESTIGATIONS

As with any investigation into a workplace issue, it is important that investigations into allegations of sexual harassment are conducted promptly by an independent person. If there is no-one internally with the necessary skills, time and independence to conduct an investigation, the employer should appoint an independent external investigator.

Employers should consider whether there is a need for an investigation to be covered by legal professional privilege, and if so, engage their lawyers accordingly.

An investigator must ensure that all allegations are objectively assessed and all available evidence considered, and should make their finding on the balance of probabilities (i.e. that it is more probable than not that the harassment did or did not occur).

One issue that often arises in investigations into alleged sexual harassment is that no-one witnessed the alleged conduct. Therefore, an investigator may need to consider other evidence when making an assessment about the veracity of the allegations, which could include:

  • evidence of prior interactions between the parties; or
  • documentary or video evidence (such as emails, texts or CCTV footage).

An investigator may also have to make an assessment as to one person's credibility over another's. This is why it is critical that an investigator is independent, so there can be no suggestion that their own bias has swayed their assessment of credibility.

Any disciplinary action should only be taken in response to matters that can be substantiated. A poorly executed investigation can expose an employer to legal claims, including unfair dismissal claims from the alleged perpetrator.

At the conclusion of any investigation, employers should also consider what can be learnt from the process. Did the allegations expose a gap in policies, training or procedures? Are there any matters that need to be communicated to management and staff (being mindful, of course, of confidentiality)?

If you would like to know more about protecting your organisation from the risks of sexual harassment, or are interested in Corrs facilitating customised Workplace Behaviour Training for your workplace, please contact:

Footnote

1 Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728. See also Collins v Smith (Human Rights) [2015] VCAT 1992, where a complainant in a sexual harassment case was awarded over $330,000 in damages.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

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