There is a lot of information and discussion swirling around at the moment in relation to sexual harassment, the prevalence of it, the need for something to be done about it and the flow on effects for corporate Australia. As the ground continues to swell around this issue, there is a real sense this is not going away until meaningful change is effected.
By way of background:
Sexual harassment is:
> any unwelcome sexual advance;
> unwelcome requests for sexual favours; or
> other unwelcome conduct of a sexual nature in relation to the person harassed,
in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
> The Sex Discrimination Act 1984 prohibits sexual harassment at work.
> According to a national survey conducted by the Human Rights Commission in 2018, one in three people (and almost 2 in 5 women) experienced sexual harassment recently.[1]
> The Respect@Work Report was released in March 2020, containing the results from a national inquiry led by Sex Discrimination Commissioner Kate Jenkins into sexual harassment in Australian workplaces.
> The report found that sexual harassment is pervasive and widespread in Australian workplaces and made 55 recommendations aimed at addressing and preventing sexual harassment at work.
The latest
In the wake of highly publicised allegations of incidents involving government workplaces, the public response has been loud and clear, evidenced by the March 4 Justice and its resulting petition. Following these events and the Respect@Work Report, the Government has presented its own report, entitled “A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces“. This document confirms the Government has accepted each of the 55 recommendations found in the Respect@Work Report in full, in part or in principle, or it has otherwise noted them.
We need to wait to see how the Government’s response will play out in the real world, but it has stated its intention in its report to overhaul current federal laws to address work-related sexual harassment.
What should you do today?
Whilst we wait to see how things unfold, our current laws and regulations are clear – sexual harassment is illegal at work. Further, under both work health and safety legislation and the Sex Discrimination Act, employers may be liable if they do not take reasonable action to prevent or protect those in the workplace from sexual harassment.
At a minimum, all employers must ensure these things are in place:
> an appropriate sexual harassment policy;
> relevant training for employees, including how to identify and respond to sexual harassment;
> proper internal complaints-handling procedures; and
> appropriate response mechanisms to complaints of sexual harassment, including best practice investigation of the alleged incident(s).
Sexual harassment is now front and centre of Australia’s social and corporate obligations. The writing is on the wall. Aside from the serious legal and reputational ramifications for mishandling these issues or not addressing them at all, an enormous upside exists for businesses that get this right. The gap between businesses that manage these issues well and those struggling to adapt is widening.
We help our clients lead the way.
[1] Australian Human Rights Commission, ‘Everyone’s business: Fourth national survey on sexual harassment in Australian workplaces’ (2018) (‘2018 National Survey’) page 8, as cited in Australian Human Rights Commission, ‘Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report’ (2020) page 10.