Demystifying sexual harassment at work – #MeToo and the law

The law relating to sexual harassment in Australia has been in place for over 30 years and should provide robust protection for workers. Despite this, sexual harassment remains a significant problem in Australian workplaces. One in three people (33%) have experienced sexual harassment at work in the last five years. The reporting of sexual harassment remains low, with only 17% of people experiencing sexual harassment at work making a formal report or complaint about the harassment. This is in spite of a huge surge in public concern about sexual harassment, generated by the #MeToo movement around the world and in Australia.

Despite sexual harassment being unlawful, we are far from reaching the point where steps to prevent sexual harassment within the workplaces are effective.   

What is sexual harassment?

Sexual harassment is defined in the Sex Discrimination Act 1984 (Cth) as any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature in relation to the person harassed in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

According to the Australian Human Rights Commission’s 2018 national survey into the prevalence, nature and reporting of sexual harassment in Australian workplaces, the three most common forms of sexual harassment at work are:

1. Offensive, sexually suggestive comments or jokes;
2. Inappropriate physical contact; and
3. Unwelcome touching, hugging, cornering or kissing.

Why is sexual harassment relevant to employers?

There are good business reasons for preventing sexual harassment in the workplace, not only because of the primary responsibility of employers to ensure the safety of all employees whilst at work, but also because failing to prevent and respond appropriately to sexual harassment comes with the following risks for employers:

• Reputation, PR and brand damage, given the prevalence of stories being shared online during # MeToo era;
• Loss of stakeholder confidence;
• Organisational impacts such as reduced productivity, high staff turnover, absenteeism;
• Workers compensation claims;
• Significant compensation awards where the employers are found to be vicariously liable for the actions of their employees.  

Common problems for employers

The most common mistakes employers make in their efforts to prevent and respond to sexual harassment include:

• Not setting clear expectations about appropriate workplace behaviour.
• Not consistently enforcing workplace policies, or allowing a “protected species” in powerful or senior positions to get away with bad behaviour.
• Not addressing rumours, innuendo or gossip.
• Not implementing or following a clear internal reporting or impartial investigation process. Employees are more likely to progress straight to legal proceedings or the media if they’re dissatisfied with the internal processes available.
• No public relations strategy in place to deal with allegations of sexual harassment made via social media or media investigations.
• If allegations are unsubstantiated, no ongoing monitoring of the workplace behaviour.

Guidelines for Employers to Minimise the Risk of Workplace Sexual Harassment

To reduce the risk of workplace sexual harassment occurring, employers should:

1. Put in place training and policies in relation to acceptable behaviours in the workplace, particularly with respect to sexual harassment. There are some quite cost effective options available for online training appropriate for small to medium sized businesses.
2. Ensure managers and business owners lead by examples in all aspects of workplace conduct.

Guidelines for Employers in Responding Appropriately to Complaints

Some guidelines for responding to complaints include:

1. Ensure that complainants feel safe and supported in making a formal complaint – this can require changes at a broader cultural level. 
2. Employ active listening skills, not prejudging, and ensure that the matter is taken seriously.
3. Keep records of conversations, and file notes. A paper trail can provide evidence of taking “all reasonable steps”, to assist in reducing the risk of vicarious liability.
4. Even if allegations are unsubstantiated, there needs to be follow up activity. Employers have a responsibility for the ongoing monitoring of behaviour, and the provision of additional workplace training, coaching, and supervision.  

Way forward

Sexual harassment in the workplace is far from a new issue. However, the #MeToo campaign, growing public awareness, and changing community attitudes, are resulting in a greater number of complaints being made. Employers need to champion a positive workplace culture based on respect, which is safe and inclusive for all employees, and ensure that breaches of the sexual harassment policy are carefully responded to.