Workplace sexual harassment: What you need to know

The allegations that started in the US with Harvey Weinstein and avalanched from there – touching Don Burke and Craig McLachlan, among others, here in Australia – are shocking. But what’s more shocking is that these types of behaviours are relatively common. Take away the glitz of stage and screen, and these are examples of workplace sexual harassment – something that’s experienced by around a quarter of women workers.

So if it were happening in your workplace, would you know?  

The reality is that sexual harassment is likely to occur in every Australian workplace at some point – don’t fool yourself that yours is immune. The focus on celebrity harassers can create an impression of the workplace sexual harasser as a lone ‘bad actor’, ignoring the everyday nature of sexual harassment in Australian workplaces, and obscuring the fact that it is often linked to blokey and sexist work cultures. And this doesn’t necessarily mean the girly-calendar-on-the-garage-wall cliché. It can involve a more subtle exclusion from certain roles and opportunities that lays the groundwork for a culture that turns a blind eye to sexual harassment.

Do you know what to look out for?

Workplace sexual harassment can take a number of forms that may pass under your radar. The most common are sexually suggestive comments or jokes, intrusive questions about private life or physical appearance, and inappropriate staring and leering.

The definition in law is: any conduct that is of a sexual nature, is unwelcome, and that a reasonable person would expect the victim to be offended, humiliated or intimated by.

The law also says that:

• Sexual harassment can be physical, verbal or written.
• A single incident is enough to constitute sexual harassment – it doesn’t have to be repeated.
• It’s sexual harassment whether it happens at work or at a work-related event.
• The motives or intentions of the harasser are irrelevant. ‘It was only a joke!’ is not a defence.
• Employers can be held vicariously liable for acts of sexual harassment performed by their employees.

What are the red flags in your organisation?

Given that employers can be held liable, it’s vital they act to minimise the risk of sexual harassment. Complaints made to past human rights commissions are more about the failure of the organisation to respond adequately to the original complaint than they are about the harassment itself.

Ask yourself:

• Is there a possibility that the workplace culture may facilitate sexual harassment occurring?
• If so, do you know how to positively realign your workplace culture to reflect what is ‘reasonably expected’ in every Australian workplace?
• Do you have proactive, preventative measures in place to minimise the risk of sexual harassment?
• Do you know how to address issues or allegations of sexual harassment, should they be made?  

Minimising the risk in your workplace

If you answered ‘no’ to any of the questions above, here’s how to start putting things right.

1. Ensure there’s a shared understanding in the workplace of what constitutes sexual harassment under the law.
2. Develop a sexual harassment policy and procedure clearly outlining how to make a complaint or raise an issue, and promote it across the whole organisation.
3. Ensure sexual harassment behavioural and compliance training is held throughout your organisation (including at Board level) at least once every two years.
4. If an allegation of sexual harassment is made, address it immediately.  
5. If there is a conflict of interest (real or perceived) in addressing an allegation, get expert advice to help you manage it.

Remember, being proactive and preventative is always the best policy. It saves harm to your employees, saves you money and time, and allows you to stay focused on what’s most important: your core business!

Do you need help establishing sexual harassment polices or procedures? Are other workplace issues taking you away from your core business? To discuss this or other workplace challenges, get in touch with us.