Despite its humble beginnings, the #MeToo movement as we all know became an international calling card against sexual violence and harassment in the workplace. This was primarily due to what can only be described as a flood of complaints against Harvey Weinstein.
The movement has brought the issue of sexual harassment at work to the forefront and has led to much debate and discussion about workplace sexual harassment.
According to the Anti-Discrimination Board of New South Wales Statistics for 2013-14, sexual harassment complaints constituted about 8% of all complaints received. Further, the Personal Safety Survey by the Australian Bureau of Statistics found in 2016 that 15% of women and 9% of males in NSW had experienced sexual harassment; with 17% of females and 9% of males being the national averages. In terms of male sexual harassment this was up from 5.4% in 2012.
So let us look at how sexual harassment is dealt with in the NSW/Australian context and the legislation that tries to address it.
In a future blog, we’ll look at tips for conducting an investigation (which could include investigations of allegations of sexual harassment).
What is sexual harassment?
Key elements are: conduct that is unwelcome and of a sexual nature.
Sexual harassment is a form of discrimination.
Conduct that may not be considered behaviour of a sexual nature on its own may be deemed to be of a sexual nature if it forms part of a pattern of sexual conduct. Sexual harassment may occur in a work environment which is sexually charged or hostile. Therefore, workplace culture is vitally important to prevent sexual harassment occurring in the workplace.
Sexual harassment is illegal and if it is not properly dealt with is likely to result in claims against employers. Sexual harassment can occur in any workplace and can have catastrophic consequences for the victim and the workplace as a whole.
The key pieces of legislation in NSW dealing with sexual harassment are the Anti-discrimination Act 1977 (NSW) (the NSW Act) and the Sex Discrimination Act 1984 (Cth) (the Commonwealth Act).
General forms of harassment or bullying which are not of a sexual nature will not be considered sexual harassment under the legislation.
Conduct is unwelcome if it is not solicited or invited and is regarded by the target as undesirable or offensive. It is irrelevant that the conduct in question is not unwelcome to others or has been an accepted feature of the workplace in the past; the question is does the recipient find the conduct unwelcome.
Whether or not the person who engaged in the behaviour intended to sexually harass the recipient is irrelevant. Further, a one off incident can constitute unwelcome conduct there is no need for it to be repeated or a pattern of behaviour.
There is no requirement that a complainant tell his or her alleged harasser that the conduct is unwelcome. A failure to tell the alleged harasser that the conduct is unwelcome does not prevent a claim from being made.
Sexual interaction, flirtation, attraction or friendship that is consensual and invited and reciprocal, is not considered unwelcome and will not constitute sexual harassment.
Conduct of a Sexual Nature
The NSW Act provides that a person sexually harasses another person if:
- the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
- the person engages in other unwelcome conduct of a sexual nature in relation to the other person,
- in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
The Commonwealth Act provides a person is sexually harassed under that Act:
- If the person makes an unwelcome sexual advance, or unwelcome request for sexual favours, to the person harassed, or
- Engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
- in circumstances in which a reasonable person having regard to the circumstances would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
Conduct of a sexual nature includes a statement of a sexual nature to a person or in the presence of a person, whether the statement is made orally or in writing.
What is a Workplace?
Let’s face it, the traditional workplace being for example, within the four walls of an office building no longer properly defines what a workplace is.
To keep up with the way a lot of us now work, the definition of a workplace includes, includes common areas, entrances, lifts, corridors, kitchens, toilets, travelling to and from work or a work based function, on trains, planes, buses and cars, undertaking work or workplace functions at the premises of a client, suppliers, associate businesses and conference halls and other venues where work functions are held.
What is Employment for the purposes of Sexual Harassment?
Employment has an extended definition to include work under a contract for services.
Does Workplace Sexual Harassment only apply to Employees?
The NSW Act applies to “workplace participants” including employees and employers (including persons who are seeking employment with an employer), commission agents, contract workers, partners, self employed people, volunteers and unpaid trainees.
Who is liable?
Employer’s legal liability can arise in a number of ways namely, personal liability, accessorial liability, vicarious liability, and liability for victimisation of a person in connection with a complaint.
Individuals may be responsible for the conduct occurring. For example, a sole trader and partner as well as individual managers and employees will be liable for their own acts of sexual harassment. This is known as personal liability.
Employers are liable under the Act if they cause, instruct, induce, aid or permit another person to engage in sexual harassment. This is known accessorial liability or ancillary liability.
|Case Study Despite previous complaints of sexual harassment against a doctor by other women placed at a medical practice by an employment agency, it referred a young woman to the doctor’s office for employment. The young woman was later sexually harassed by the doctor. The Federal Court of Australia found that the employment agency had permitted the sexual harassment to take place. Justice Small found that the case worker who referred the woman for employment did not have to know about the past complaint of sexual harassment as the collective knowledge of the employment agency officers was sufficient to establish the liability.|
Employers can be held vicariously liable for sexual harassment if there is an employment or agency relationship between the organisation and the person who was found to have committed the sexual harassment.
No such relationship is required for an employer to be found an accessory to harassment.
An employer will be found vicariously liable for sexual harassment committed by one of their employees or agents if they fail to take all reasonable steps to prevent the harassment from occurring.
Preventing and Addressing Sexual Harassment
Employers have a duty to take reasonable steps to prevent sexual harassment in the workplace.
Employers must actively minimise the risk of sexual harassment and respond appropriately if allegations of sexual harassment are made or if sexual harassment is found to have occurred. What amounts to reasonable steps is not defined in any Act and may vary depending upon the size, structure and resources of the employer.
The key to preventing sexual harassment is for employers to send an unequivocal message to your workforce that sexual harassment is unacceptable in the workplace. This message must be backed up by the consistent application of policies and procedures dealing with this issue.
Some key steps towards creating safe working environments include:
- distributing communications from senior management that sexual harassment is unlawful and will not be tolerated in the workplace;
- setting expectations with senior management to model appropriate behaviour and respond swiftly and effectively to sexual harassment complaints;
- responding promptly to any concerns raised;
- supporting and encouraging bystanders to report any inappropriate sexist or sexualised behaviour;
- remove offensive sexualised, explicit or pornographic material from the workplace;
- ensure workplace policies prohibiting inappropriate use of technology, addressing sexual harassment;
- distributing and displaying posters and pamphlets that explain rights and obligations around sexual harassment;
- conducting regular reviews to monitor the incidents of sexual harassment and the effectiveness of the complaint system.
Every employer should develop and implement a written policy that makes it clear that sexual harassment is unlawful and will not be tolerated.
Key elements that should be identified in the policy include:
- that sexual harassment is prohibited under State and Federal law;
- appropriate standards of conduct apply at all times, including at work related events;
- a clear definition of sexual harassment must be included in the policy, for example, sexual harassment is unwelcome conduct of a sexual nature that a reasonable person anticipates would possibly make the recipient feel offended, humiliated or intimidated;
- a statement that sexual harassment will not be tolerated under any circumstances, the employer is committed to ensuring a safe work environment free of sexual harassment and the employer’s strategy for preventing sexual harassment;
- identification of the responsibility of specific staff, for example, complaints and contact officers, managers and supervisors. Policies should inform everyone in the workplace where they can go if they feel they have been sexually harassed in the workplace or have witnessed sexual harassment of others;
- confirmation that bystanders will be supported to undertake action against sexual harassment;
- the consequences of a breach of the organisation’s policies must be outlined such as swift disciplinary action will be taken against anyone who breaches the policy and what that action may include;
- legal action may be taken against an individual employee who is found to engage in sexual harassment and the employer.
Manager and supervisor responsibility should include monitoring the working environment to ensure acceptable standards of conduct; modelling appropriate behaviours themselves; promoting the sexual harassment policy within their work area; treating all complaints seriously and taking immediate action.
Employers should provide or facilitate education and training regarding complaints of sexual harassment. A written policy is only effective in addressing sexual harassment if it is properly implemented and enforced. All workplace participants should be made aware of the policy and their rights and obligations in relation to sexual harassment. Employers need to distribute the sexual harassment policy widely and conduct regular information sessions on compliance. It is important that managers understand the employer’s policies and are able to deal with these issues appropriately which include having difficult conversations with staff.
Responding to Sexual Harassment Complaints
Employers should develop and implement a robust procedure for dealing with complaints of sexual harassment. Some steps that employers may take to enhance the effectiveness of the response to sexual harassment include: establishing and implementing an internal complaints procedure; investigating sexual harassment complaints and taking appropriate remedies and actions; and keeping confidential records of complaints separate to the personnel file.
Employers should establish internal complaints procedures for addressing sexual harassment.
The purpose of an internal complaints mechanism is to provide an opportunity for a complaint to be made by an employee and for the employer to investigate the complaint and where required to take action to address the situation and resolve the complaint.
The investigation should gather relevant information for addressing whether or not the complaint amounts to sexual harassment.
A complaint procedure should be a staged process. Employees should have a right to raise an issue with their manager, supervisor or a member of the HR team or other nominated person who they believe can deal with their complaint.
Employers should be clear that the initial contact person cannot be the same person who investigates or makes the decision about the complaint. Employers should keep confidential records of all complaints of sexual harassment, even where the complaint does not proceed through the full process.
There are a number of key elements that should be incorporated into the internal complaints process, namely establishing a complaints procedure that is transparent, efficient and both confidential and fair.
Sexual Harassment Inquiry
On 20 June 2018, the Sex Discrimination Commissioner Kate Jenkins announced there would be a national inquiry into sexual harassment in Australian workplaces. This will be a world first.
The 12-month inquiry will consider the economic impact of sexual harassment, the drivers of these behaviours and the adequacy of the existing legal framework. It will also identify examples of existing good practice, and make recommendations for change, providing a way forward for preventing sexual harassment in the workplace.
The Australian Human Rights Commission is currently conducting the fourth national survey into workplace sexual harassment, with results expected to be released in August 2018. Early indications are said to show a rise in sexual harassment complaints since 2012.
The spotlight on the issue of workplace sexual harassment and the announcement by Commissioner Jenkins should ensure employers take notice of what is currently and what will likely be future community expectations.
In my view, there is currently a real expectation that employers’ take action when these issues arise, and that their policies and procedures ensure organisations are responding effectively and appropriately to complaints of sexual harassment.
We recommend all employers routinely review their policies and procedures to make sure they are up to date with current law and reflect the needs of their workforce.
STAY TUNED FOR OUR TIPS ABOUT INVESTIGATIONS!
Nicole Dunn and Veronica Lee