Reducing instances of workplace sexual harassment

With sexual assault survivor Grace Tame being named this year’s Australian of the year, coupled with the more recent allegations of sexual misconduct in Parliament, the topic of sexual assault is making headlines in the media, and is firmly at the forefront of the nation’s mind. Indeed, on March 4, thousands of people attended Justice rallies around the country calling for more action regarding sexual abuse.

In line with this, WorkSafe has recently launched its latest campaign, Let’s Be Very Clear. Running across digital, print, radio and social media channels for the next month, the campaign aims to raise awareness of what sexual harassment is, educate employers on their responsibilities and encourage workers to call out unacceptable behaviour.

Unfortunately, according to the Australian Human Rights Commission’s (AHRC) last national survey on sexual harassment in the workplace, one in three people have been sexually harassed at work in the past five years. Further to this, there was a 36 percent increase in inquiries to the Victorian Equal Opportunity and Human Right Commission (VEOHRC) about workplace sexual harassment in 2020 compared to 2019.

This is a timely reminder to employers to assess their workplace sexual harassment policies and determine whether or not they are providing a safe environment for employees. Often, it can be easier to address safety concerns that are more visible, for example exposed electrical cords or liquid spills. But just because an employer can’t see any instances of sexual harassment in the workplace, doesn’t mean it isn’t happening.

Here are some important things to consider when aiming to reduce the likelihood of sexual harassment occurring within the workplace and create a safer environment for all employees.

Why do we need to address workplace sexual harassment?

Besides the obvious ethical reasons as to why sexual harassment should not be tolerated, there are also numerous business reasons as to why this is something organisations should actively aim to mitigate.

The Let’s Be Very Clear campaign reminds employers that preventing and effectively dealing with sexual harassment in the workplace is actually their responsibility. So much so, that as an employer you can be held legally responsible for acts of sexual harassment committed by your employees. This is called ‘vicarious liability’, and the Sex Discrimination Act makes employers liable unless they have taken all reasonable steps to prevent sexual harassment taking place.

WorkSafe Health and Safety Executive Director Julie Nielsen said the campaign was a wake-up call that this kind of behaviour can never be ok.

“Let’s be very clear – a workplace where sexual harassment is tolerated is an unsafe workplace,” she said in a press release.

“Employers have a responsibility to provide a safe and healthy workplace and we all have a role to play in calling out this unacceptable behaviour when we see it.”

Further to the legalities surrounding sexual harassment and gendered violence in the workplace, such occurrences can result in reduced productivity, greater absenteeism and lower retention rates, all of which invariably lead to economic loss for companies.

If employers wish to reduce the risk of sexual harassment occurring within their organisation, here are some important considerations for doing so.

Have rigorous policies and procedures in place

There are two main actions that employers must take to show that they have taken all reasonable steps and avoid liability for sexual harassment.

The first of these is having a sound sexual harassment policy in place, implementing it as fully as is possible and regularly monitoring its effectiveness. This policy must be clear in communicating that sexual harassment, misconduct or gendered violence will not be tolerated.

Secondly, if sexual harassment does occur, this does not necessarily mean the employer will be liable, but they must show that they have taken the appropriate remedial action. There should be procedures for dealing with grievances and complaints once they are made.

Training and education

A very important consideration when dealing with the issue of sexual harassment within the workplace is educating employees at all levels about what constitutes sexual harassment and the organisation’s policies around this.

Sexual harassment is defined by the AHRC as “unwelcome sexual conduct which makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances.”

It is important to note that it doesn’t necessarily matter what the person’s intention was behind their behaviour, but the way in which it is perceived by the recipient. This means that sexual harassment can occur within the workplace in various forms, including unwelcome touching, hugging or kissing; suggestive comments or jokes; unwanted invitations to go out on dates; insults based on your sex or sexually explicit emails or SMS messages.

It is important for your workforce to understand the definition of sexual harassment and their responsibility to avoid such conduct. Employers should consider holding training sessions for managers, displaying anti-sexual harassment posters in common work areas, and conducting regular awareness raising sessions for all staff on sexual harassment issues. It can also be beneficial to ensure selection criteria for management positions include the requirement that managers have a demonstrated understanding of and ability to deal with discrimination and harassment issues.

Understanding those at greater risk

While all organisations should aim to have strident anti-sexual harassment policies in place, there are a few industries and groups of people who experience greater instances of sexual harassment. As an employer, it may be useful to be aware of these.

WorkSafe’s campaign, for example, is specifically targeting those industries which are identified as high risk, including information, media and telecommunications, healthcare and social assistance, retail, education and training, and manufacturing.

Furthermore, the AHRC has revealed that employee groups more likely to experience harassment include Aboriginal and Torres Strait Islander workers, culturally and linguistically diverse and migrant workers, young workers, workers with a disability and workers who identify as LGBTQIA+. Simply being aware of these increased risks can assist employers in mitigating instances from occurring.

Create a safe and supportive environment

Only a small proportion (17 percent) of people who had been sexually harassed in the last five years went on to lodge a formal report or complaint. This shows a large discrepancy between the number of sexual harassment incidents occurring and those that are being formally reported.

What this suggests is that employees may be stressed or fearful about reporting the harassment for a number of reasons. Unfortunately, these are not entirely unfounded concerns. The AHRC found that though the most common outcome for victims who made a formal report or complaint about workplace sexual harassment was that the harassment stopped, two in five reported experiencing negative consequences as a result. Furthermore, 19 percent of people who made a formal report or complaint were labelled as “a trouble-maker”, were ostracised, victimised or ignored by colleagues (18%) or resigned (17%).

It may be important for employers to reiterate the consequences that a perpetrator of workplace sexual harassment will receive, ensure employees feel safe in speaking with a trusted manager, and actively communicate the complaints procedure to the workforce.

Take direct organisational action

As an employer, it is up to you to take direct actions when it comes to addressing issues of reported sexual harassment within your workplace. Fail to do so and you could face legal ramifications.

The AHRC found that in almost half (45 percent) of cases where a formal report or complaint of sexual harassment was made, there were no changes at the workplace as a result.

In a time when organisations are coming more under scrutiny, it is crucial that employers are taking an active approach to eradicating instances of sexual harassment within the workplace. This will in turn maintain organisational reputation, build trust within your workforce and help to avoid any litigation claims against you.

If you require assistance in establishing effective workplace health and safety policies, including those aimed at mitigating sexual harassment, contact the Bayside Group today.