Guided by the #MeToo and #LetHerSpeak movements, there has been a significant public push for the elimination of sexual harassment in Australian workplaces. In recognition of this, the Australian Human Rights Commission announced a National Inquiry into sexual harassment in Australian workplaces which ultimately led to the publication of the Respect@Work Report (Report) on 5 March 2020. The findings of the Report make it clear that the current approaches to dealing with sexual harassment in the workplace, on their own, are ineffective.
In a recent webinar, Special Counsel Adele Garnett and Associate John Hickey analysed the 2020 Respect@Work Report, the legal framework of sexual harassment in Australia and recent cases, both Federal and State, where significant sums of damages have been awarded to victims of sexual harassment with employers being held vicariously liable.
Key takeaways from the webinar
Recently, the Federal Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 which gives effect to several of the Report’s recommendations.
In recognition of the prevalence and immense harm caused by sexual harassment, there has been an increasing uplift in Australian courts and tribunals awarding and upholding significant sums of damages to victims of sexual harassment. In a recent Federal Court of Australia decision to award $170,000 in damages to a vulnerable paralegal who had been sexually harassed by her boss, Judge Vasta eloquently stated:
"It is a mark of a bygone era where women, by their mere presence, were responsible for the reprehensible behaviour of men. The Sex Discrimination Act was enacted to help eliminate this sort of thinking."
In light of employers’ work health and safety obligations and the need to avoid vicarious liability in sexual harassment claims, employers must ensure that they take all reasonable steps to prevent sexual harassment from occurring in their workplace.
It is important to note the traditional strategies of merely having a policy and mandating simple training have proven not sufficient to address sexual harassment. A comprehensive strategy, driven by management, needs to be developed to address underlying issues.
Employers can take the following practical steps in their workplaces to address sexual harassment.
Undertake a sexual harassment work health and safety risk analysis
This will assist in identifying strategies by considering risk factors, including where power imbalances exist, who is likely to be harassed, and which workplaces are higher risk. Including staff members by consultation will ensure that the best plan is developed and will also normalise discussion about the issues in the workplace.
Review and update sexual harassment policies
Ensure that your policies include recent legislative amendments, and importantly, focus on equality and respect and support for complainants (including protection against retaliation). Other things to include are a clear definition of sexual harassment, that it is unlawful (brief reference to legislation), policy application outside of the workplace (including through digital technology), a robust complaint management process, disciplinary action if proven, and how the policy aligns with other relevant policies. Importantly, there needs to be a robust strategy for implementing the policy so that staff are made aware, and reminded of, the expectations.
Provide sexual harassment education and training
Training should be targeted to the audience (preferably with separate training for supervisors in complaint management and addressing concerns) and engaging. It should educate on the policy, and address power imbalance and inequalities. Consideration should be given to providing some bystander training – what employees can do if they witnesses harassment or discrimination.
Involve board/senior management
Management need to be committed, lead from the front, and hold others accountable for poor behaviour. They need to drive any gender or diversity strategies and cultural change, but to do so, they need to be properly informed with information on gender and diversity indicators, staff dissatisfaction, complaints and misconduct, and related training. Consider including sexual harassment on management/board agenda at regular meetings.
Open communication channels in dealing with complaints of sexual harassment
Ensure that both the complainant and the respondent is well supported during a complaint investigation. Once findings are made, consider whether the business should be open (at least to an extent) on what has happened, with a victim’s consent. At the least, the business should consider sharing de-identified data on complaints with employees, allowing staff to see how complaints are being responded to appropriately.
The issue of sharing information about particular complaints must be considered on a case by case basis, and where possible, weigh towards some disclosure in the interests of addressing underlying workplace safety and governance issues.
In deciding whether to disclose, consider:
- whether the conduct was proven and the quality of the investigation report;
- what the victim wants (a key consideration);
- the cultural impact, including showing that complaints are taken seriously and that it is dealt with like any other work health and safety incident;
- seriousness of the complaint; and
- the potential for a defamation claim.
Reconsider the need for a non-disclosure agreement with the complainant, or at the least, seriously consider what parts of a settlement need to be kept confidential. Be clear on what the complainant can disclose and to who (a minimum of close family and friends, health professionals and professional advisors).
Developing and implementing strategies to address sexual harassment, and managing complaints, can be complex and difficult. If you need assistance, the Workplace and Employment team at HopgoodGanim are experts in managing sexual harassment in the workplace – contact us.