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Preventing Workplace Sexual Harassment – Guidelines for managing the risks

Introduction

Sexual harassment is unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated, and where that reaction is reasonable in the circumstances. Sexual harassment can take various forms, including:

  • unwelcome touching, hugging, kissing or deliberately brushing up against a person
  • inappropriate staring or leering
  • suggestive comments or jokes
  • using suggestive or sexualised nicknames for co-workers
  • sexually explicit pictures, posters or gifts
  • circulating sexually explicit material
  • repeated or inappropriate advances or persistent unwanted invitations to go out on dates
  • requests or pressure for sex
  • intrusive questions or comments about a person's private life or body
  • insults or taunts based on gender
  • sexual gestures or indecent exposure
  • sexually explicit or indecent physical contact
  • sexually explicit or indecent emails, phone calls, text messages or online interactions
  • actual or attempted rape or sexual assault

Sexual harassment is a form of gendered violence, that is, behaviour directed at a person or that affects a person because of their sex, gender or sexual orientation, or because they do not adhere to socially prescribed gender roles.

Unlike bullying, sexual harassment can be a one-off incident. It may also be a behaviour that while not directed at a particular person, can affect someone who is exposed to or witnesses it (i.e., overhearing a conversation or seeing sexually explicit images in the workplace).

Sexual harassment might be committed by co-workers, supervisors or managers, as well as thirdparties such as customers, clients or suppliers. It may occur at a worker’s usual workplace or any alternative location where the worker is carrying out work, or during work-related functions or activities such as a training course, conferences or work-related social activities.

Legislative Obligations

As an employer, you have an obligation to provide a safe workplace for all workers. As such, employers are required to treat the risk of sexual harassment as they would other workplace risks by using a risk management approach to eliminate or minimise risks so far as is reasonably practicable.

In addition to workplace health and safety obligations, additional obligations exist under other legislation at both a national and State/Territory level, such as the Sex Discrimination Act 1984 (Cth) and State and Territory anti-discrimination and workers compensation laws.

Some acts such as indecent exposure, stalking, sexual assault and obscene or threatening communications may also be offences under criminal law. Such incidents should be referred to the Police, in addition to being managed under your workplace obligations.

Employer Liability

There are a number of different ways that an employer may be held liable under legislation for workplace sexual harassment. This includes:

(a) Personal liability

Employers, individual managers and employees are liable for their own acts of sexual harassment. This is known as ‘personal liability’.

An employer may be found personally liable for sexual harassment if he or she made an unwelcome sexual advance, unwelcome request for sexual favours or engaged in other unwelcome conduct of a sexual nature in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

(b) Accessory liability

Employers may be liable if they cause, instruct, induce, aid or permit another person to engage in sexual harassment. This is known as accessory or ancillary liability.

An employer is likely to have accessory or ancillary liability for sexual harassment if it was aware or should have been aware that sexual harassment was occurring or there was a real possibility that sexual harassment was occurring and it failed to act.

In order to be held liable as an accessory to sexual harassment, an employer must have contributed to the sexual harassment either knowingly, recklessly or through willful blindness.

(c) Vicarious liability

Employers can be held liable for sexual harassment committed by their employees in connection with their employment. This is known as vicarious liability.

Employers can only 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 harassment.

An employer may be found vicariously liable for sexual harassment committed by one of their employees or agents if they failed to take ‘all reasonable steps’ to prevent the sexual harassment from occurring.

(d) Victimisation

It is unlawful to victimise a person if he or she has taken (or proposes to take) action in relation to a discrimination claim. Victimisation includes subjecting or threatening to subject another person to detriment in the workplace. The penalty for victimisation is a fine and/or three months’ imprisonment in the case of a natural person and a fine in the case of a body corporate.

 

How to Support the Prevention of Workplace Sexual Harassment

There are a number of steps that employers can take to reasonably minimise the risk of sexual harassment and to support the provision of a safe working environment. For example:

1. Create a safe physical and online work environment.

  • Make sure work areas are secure have good natural surveillance and are well lit.
  • Avoid having furniture, partitions or barriers which can restrict workers’ movements and visibility of work areas.
  • Ensure there are no areas where workers could become trapped, such as rooms with keyed locks.
  • Provide communication systems like phones, intercoms or duress alarms.
  • Consider the online working environment if relevant e.g., security settings, use of social media for work purposes and how workers, clients or customers interact online.
  • Ensure a safe working environment for workers during travel, including when workers are in a vehicle together, at conferences, at client or customer premises and any other location where work is performed

2. Implement safe work systems, policies and procedures.

  • Regularly check in with workers, including those who work remotely
  • Consultation with workers about workplace policies and expected standards of behaviour, including at work social functions and online. Workers can help identify the hazards and risks that can lead to sexual harassment and contribute ideas about how to control them.
  • Where possible, address power imbalances in the workplace i.e. where one gender holds most of the decision-making positions.
  • Ensure clothing is practical for the work being done (i.e., avoid sexualised uniforms)
  • Provide training for workers in how to deal with difficult customers.
  • Implement a workplace policy that sets out how the business will prevent and respond to sexual harassment and communicate to workers, customers, clients and visitors that it will not be tolerated.
  • Encourage workers to keep records and screen shots if inappropriate behaviour occurs online or through phone communication.
  • For work-related corporate events, reinforcing workplace policies and what behaviours are expected of workers, ensuring that responsible service of alcohol policies are followed and that workers know who to turn to if they experience or witness inappropriate behaviour at the event.

3. Create a positive and respectful workplace culture.

  • Set the behaviour standards that provide a safe workplace for all workers.
  • Ensure everyone at the workplace understands what sexual harassment is and that it will not be tolerated, including from customers and clients.
  • Provide training for both workers and managers on what sexual harassment is, what to do if they are sexually harassed, if they witness someone else being harassed and how to report it.
  • Address unwanted or offensive behaviour early and stop it from escalating.
  • Provide workers with information on how to address unwanted or offensive behaviour early e.g., advice on how to self-manage a situation (if the person feels safe to do so), seeking support from someone else within the business or reporting the sexual harassment.

4. Encourage workers to report sexual harassment and respond.

There are a number of reasons why a worker may not report sexual harassment. For example, they may believe:

  • it is just ‘part of the job’ and nothing can be done about it
  • it is not serious enough to be reported
  • that their reports will be ignored or not handled confidentially
  • that they will be blamed or be disadvantaged (such as losing their job or negative impact on their reputation) or
  • the perpetrator may hold power over them (such as a manager) or be in a position of influence (such as a client).

To encourage workers to report sexual harassment, or to raise concerns, employers can:

  • Provide workers with a range of accessible (formal and informal) ways to report sexual harassment.
  • Ensure workers know how to report sexual harassment and are aware of what support, protection and advice is available to them.
  • Nominate a contact officer/s who are appropriately trained to support workers.
  • Respond to reports of sexual harassment as soon as possible.
  • Speak to the person making a report about how they wish to pursue the matter i.e, formally, informally or in some other way, and what support they require.
  • Maintain confidentiality and treat everyone involved fairly.

It is important that as an employer, you develop a supportive work environment where workers feel safe to raise and discuss sexual harassment issues. It is essential that a clear complaints process is in place which identifies:

  • How an employee can make a complaint
  • Who the complaint can be made to (Persons nominated to receive complaints must be well trained and well equipped to receive a complaint)
  • What steps can, and may, be taken once the complaint is made, including estimated timeframes.

How to Respond to Sexual Harassment Claims

The options about next steps will depend on the nature of the complaint and the wishes of the complainant, however the failure to respond properly to a complaint of sexual harassment can result in you being held liable.

There are a number of steps that can be taken by employers to enhance the effectiveness of their response to workplace sexual harassment. These steps include:

  • establishing and implementing an internal complaint procedure
  • investigating sexual harassment complaints and taking appropriate remedial action
  • keeping records of complaints confidential.

Having effective procedures for dealing with sexual harassment in place will enable employers to respond to complaints fairly and efficiently and will increase the opportunity to resolve complaints internally.

If you require assistance with managing such matters, or if you require HR Advice, please contact the team at HR Advice Online on 1300 720 004.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such

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