Unfortunately, dealing with allegations of sexual harassment in the workplace is an issue for many employers. Sexual harassment can take many forms, and cases are rarely “open and shut”.
Once allegations of sexual harassment or misconduct have been made, they must be appropriately investigated and dealt with. However, prevention is always better than cure.
Let’s take a look at employer obligations, the scale of the problem and how employers can help prevent sexual harassment in the workplace.
obligation to provide a safe workplace
Employers are required by law to provide a safe workplace for all employees. This is enshrined in the workplace health and safety legislation throughout Australia (for example, s19 of the Workplace Health and Safety Act 2011 (NSW)).
Legislation requires employers to provide for physical safety, for example, by preventing unsafe worksite practices which could cause injuries to employees. It also extends to ensuring that employees are protected against physical and psychological harm caused by sexual harassment or assault, and mental harm (such as could be caused by bullying or harassment).
The facts – workplace sexual harassment
A 2018 sexual harassment study conducted by the Australian Human Rights Commission, found that one in three Australian workers claim to have been sexually harassed in the workplace in the past five years. This figure has increased from one in five workers in 2012, and one in ten in 2003. Of course, this may be due to employees becoming more aware of what sexual harassment is and what their rights are in relation to reporting or taking steps to report and prevent it. However, it is still a worrying statistic.
Interestingly, although sexual harassment affects both genders (with 26% of men and 39% of women interviewed reporting experiences of sexual harassment), those most likely to be harassed in the workplace are aged between 18 and 29. Moreover, despite the fairly equal gender split in victimology, the overwhelming majority (80%) of harassers are men.
Tips for preventing sexual harassment in the workplace
There are a number of strategies that can help employers nip sexual harassment in the bud. These include:
- Management support. It is essential that all levels of management, but particularly the highest levels of the executive team, embrace an anti-harassment culture. This is particularly important when one considers that, at least anecdotally, there may be a perception that sexual victimisation is a top-down phenomenon. It is important for management to demonstrate that no type of sexual harassment will be tolerated in the workplace. Similarly, the executives of any workplace must demonstrate that they will deal swiftly and appropriately with those who have been found to have engaged in sexual harassment. Ultimately, it is essential that the entire business receives the message that sexual victimisation will not be tolerated on any level. This also means that appropriate conduct by managers should always be encouraged.
- Act when harassment occurs. It should never be taken lightly and everyone in the business needs to know how firmly and strictly the organisation will respond to findings that sexual harassment has occurred.
- Creation of a sexual harassment policy. A clear, detailed and easily accessible sexual harassment policy should be created, setting out exactly what the company’s position on such harassment is. This should include the specific behaviours that will constitute sexual harassment and will not be tolerated. It must also be widely circulated amongst staff, ideally with a sign-off required confirming that staff have read and understood the policy.
- Provision of training. Again, this should be rolled out company-wide, and conducted on a regular basis. It is important that there is general awareness, not only of what is defined to be sexual harassment, but an understanding of what rights and remedies are available to those who feel that they have been a victim of this type of harassment.
- Encouraging a positive workplace environment. By implementing the above steps, a positive environment will be fostered, which will also encourage staff at all levels to be proactive about preventing sexual harassment or calling it out when it occurs.
The need for employer action
In addition to the general requirement to provide safe working conditions for staff, there are other positive obligations on employers in relation to sexual harassment.
For example, in Victoria, the Equal Opportunity Act 2010 (VIC) imposes a positive duty on employers to prevent any sort of sexual harassment from occurring.
Similarly, employers Australia-wide may be deemed to be vicariously liable for the conduct of their employees, if it can be demonstrated that they did not take reasonable steps to prevent sexual harassment (per the Sex Discrimination Act 1984 (Cth)).
In order to protect the business, it is crucial that immediate and appropriate action by way of response to a sexual harassment notification occurs. Training managers and staff about sexual harassment and the company’s stance on it is vital.
Sexual harassment in the workplace continues to be a great concern for both employees and employers. Taking active steps and educating staff is crucial in reducing the prevalence of sexual harassment in the workplace. Accordingly, WISE Workplace offers employers training programs to address and investigate workplace sexual harassment, as well as independent investigation services to review such behaviours.
