The Spotlight's on Sexual Harassment - it's not just Hollywood!

Over the past couple of years the #MeToo Movement has been a phenomenon which has rocked institutions and companies with claims of sexual harassment, in some cases alleged to have been perpetrated over many decades. 

Some of the most notorious cases have been in the Hollywood film industry, but there are examples in other industries and countries, including Australia.

There are many questions which need to be asked, such as:

  • Why do some people act in ways which offend, humiliate or intimidate their work colleagues?

  • What are the social norms of acceptable workplace behaviour we should expect in our organisations?

  • Who should be responsible for ensuring those expectations are met?

  • What should be done to monitor performance and enforce standards?

Not all of these questions can be addressed in a short paper like this.  However there are issues with real human and commercial consequences which need to be taken seriously. The objective of this blog is to raise awareness so that readers will be able to identify unlawful or unprofessional conduct, display model behaviour and take appropriate steps to minimise the risk of reoccurrence of unacceptable behaviour or of liability arising.

To take stock, let’s agree what sexual harassment means in this context

From a legal perspective, sexual harassment is:

  • An unwelcome sexual advance;

  • An unwelcome request for sexual favours; and

  • Unwelcome conduct of a sexual nature.

The law will consider sexual harassment has occurred 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.

Therefore, there are three elements for the legal definition of sexual harassment to be satisfied:

  • The behaviour must be unwelcome;

  • The conduct must be of a sexual nature; and

  • That the conduct would offend; humiliate; or intimidate.

Workplace sexual harassment in Australia

Now, let’s consider some statistics. There is no gender bias in the law, so any combination of genders in workplace relationships can satisfy the legal rules. However, for the purposes of getting some perspective, here are some statistics which focus on men harassing women, by far the overriding form of sexual harassment identified in workplaces. 

workplace-sexual-harassment-in-australia
 

There’s no doubt that this is a widespread issue!

Examples of actions which have been classified as sexual harassment include:

  • Sexual or suggestive remarks, jokes, pranks or comments;

  • Sexual propositions or repeated requests for dates/sexual favours;

  • Repeated questions about personal life;

  • Leering, whistling;

  • Sexual jokes;

  • Physical unwanted contact such as touching, hugging, brushing up against a person;

  • Offensive phone calls, reading matter or objects, emails, Facebook, texts, Twitter, Instagram etc; and

  • The repetition of any conduct of a sexual nature that causes an employee discomfort after the employee has told the harasser of their discomfort.

Who is protected by the laws in relation to sexual harassment in the workplace?

Employers, management and employees must not sexually harass:

  • Other employees;

  • Prospective employees by, for example, asking inappropriate and intrusive questions of a sexual nature in an interview;

  • Any other person working in the same workplace as the employer; and

  • A client, customer, or any other person during the course of supplying goods, services or facilities.

What’s the impact of sexual harassment?  Typical outcomes of sexual harassment include:

  • Absenteeism;

  • Loss of self-esteem and confidence;

  • Reduced work performance and output;

  • Increased risk of injury including psychological injury;

  • Lower morale;

  • High staff turnover;

  • Costly workers’ compensation claims or legal action (WH&S prosecution, EEO claims, negligence claims, criminal prosecution);

  • Stress, anxiety and depression;

  • Adverse publicity;

  • Reduced quality of home and family life; and

  • In extreme cases, self-harm and suicide.

So, who’s liable if sexual harassment happens?

In short, both the person who harasses and the employer will be held responsible.

How can an organisation protect itself from claims of sexual harassment in the workplace?

An excellent first step is to establish a robust and compliant policy which:

  • Expresses in strong terms the organisation's objectives regarding elimination of sexual harassment;

  • Provides a clear definition of sexual harassment, referring in particular to anti-discrimination laws;

  • Clearly explains what sexual harassment is, what it is not, that it is against the law (giving practical examples) and that it will not be tolerated;

  • Details information in relation to a trusted point of contact whom employees should contact if they require further help or wish to make a complaint;

  • Describes how complaints are managed; and

  • Communicates what the consequences of breaching the policy will be.

This policy should be part of all induction training for the organisation, and also be included in ongoing and refresher training on a regular basis. It’s critical that the workplace culture reflects the policy. It’s also important to be proactive - don’t rely just on victims to report sexual harassment. 

An organisation can minimise the risk that its policy will be breached by actions such as:

  • Obtain high level managerial support and continue to raise awareness;

  • Ensure familiarisation with the law;

  • Model appropriate behaviour;

  • Review current workplace activities and identify risk factors (for example; alcohol, behaviour at work functions, a culture of silence);

  • Keep policies up to date and ensure the complaints procedure is effective;

  • Ensure policies are distributed, visible and easily accessible to employees;

  • Conduct regular and best practice training and ensure management participation;

  • Respond promptly and effectively to complaints;

  • Investigate thoroughly, promptly and fairly;

  • Establish mediation/conciliation processes and consider their use in appropriate circumstances;

  • Take disciplinary/remedial action as required; and

  • Enforce policies consistently and irrespective of seniority.

In the event that a claim is made against the organisation, there are prudent measures which should be taken to protect the firm’s commercial interests:

  • Obtain good quality legal advice;

  • Maintain, where practical, open communication with the complainant and alleged perpetrator;

  • Plan for a response (as a worst case scenario);

  • Prepare for defensive or vexatious claims; and

  • In serious cases, seek to establish legal professional privilege.

Bringing all this together, from the perspective of an employer, responsibility for having a positive workplace culture and safety in the workplace rests with you!

Increased exposure of these issues means that companies need to make increased investment to mitigate the risks.  Employers must take preventative action which is effective in ensuring that people in the workplace can be confident that their well-being is protected. Employers must provide support in appropriate cases and take disciplinary action where indicated.

At its simplest, a company needs:

  1. Good people;

  2. Good documentation;

  3. Good systems and processes; and

  4. Good culture.

The risk of unacceptable behaviours will be minimised in the workplace if everyone treats their colleagues with dignity and respect.

However, leadership and vigilance with respect to safety are critical.

steven-lamande-partner-nem-australasia

Author: Steven Lamande, Partner nem Australasia

This article is based on research and opinion available in the public domain.


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