Sexual harassment in the workplace: A timely reminder for business

Sexual Harassment in the Workplace: A Timely Reminder for Business

Under the backdrop of the #MeToo movement surrounding actors and celebrities, along with recent allegations against former High Court Judge Dyson Heydon, now presents a timely reminder that sexual harassment, particularly in the course of one’s employment, is entirely unacceptable.

The Sex Discrimination Commissioner, Kate Jenkins has recently handed down the Sexual Harassment National Inquiry Report into Sexual Harassment in Australian Workplaces (“the Report”) and it serves as an excellent resource for employers to ensure that their workplaces are free of sexual harassment. It provides a framework for maintaining a safe workplace, key indicators with respect to which employers must remain vigilant, and methods to deal with potential sexual harassment before it becomes costly to both personnel and business.

What is Sexual Harassment in the Workplace?

As well as having a devastating impact on affected individuals’ health, wellbeing, career and finances, sexual harassment represents a cost to Australian employers through:

• lost productivity;
• staff turnover;
• negative impact on workplace culture;
• responding to complaints, litigation and workers’ compensation; and
• reputational damage.

Under the Sex Discrimination Act 1984 (Cth) (“SDA”), sexual harassment is defined as:

• any unwelcome sexual advance;
• unwelcome request 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.

However, these definitions take a broad view of what constitutes sexual harassment and fail to address the most typical examples of sexual harassment in the workplace which cause the most problems for employers and employees alike. The 2018 National Survey conducted by the Australian Human Rights Commission (“AHRC”) identified a number of different types of sexually harassing behaviours including:

• verbal forms of sexual harassment, such as sexually suggestive comments or jokes and intrusive questions about private life or physical appearance;
• sexually explicit pictures, posters or gifts;
• intimidating or threatening behaviours such as inappropriate staring or leering, sexual gestures, indecent exposure, or being followed, watched or someone loitering nearby;
• inappropriate physical contact, such as unwelcome touching, hugging, cornering or kissing; and
• sexual harassment involving the use of technology, including sexually explicit emails, SMS or social media, indecent phone calls, repeated or inappropriate advances online, or sharing or threatening to share intimate images or film without consent.

The two most common types of behaviour reported to the AHRC are sexually suggestive comments or jokes and intrusive questions about private life or physical appearance. In many cases brought before the AHRC and the Fair Work Commission (“FWC”) complaints by employees, the subject of sexually harassing ‘jokes’, were originally met with surprise by the harasser when their attempts at humour were met with offence or insult.

Quite often, incidences of the ‘sharing of jokes’ or unnecessary familiarity evolve into incidences of sexual harassment. In the recent case of Emmanuel Montes v The Star Casino [2020] FWC 874, an employee was dismissed by The Star Casino for serious misconduct where what began as a joke between a male server and his female colleague culminated in him smacking her on the backside with a serving tray and sending her “creepy, unwanted, disgusting and inappropriate” text messages.

Increasingly, the misuse of social media has given rise to claims of sexual harassment of colleagues, albeit outside the confines of the workplace. Employees have often been under the mistaken impression that ‘friending’ a work colleague on platforms such as Facebook or Instagram and then either sending inappropriate material or making inappropriate comments cannot be adjudicated as harassment by their employer. In the matter of Little v Credit Corp Group Limited t/as Credit Corp Group [2013] FWC 9642, an employee used his Facebook account to make sexually suggestive comments to a new employee that he ‘friended’ and was terminated as a result. However, sexual harassment over social media need not be as overt as in the matter of Little. By ‘friending’ a colleague on Instagram and routinely commenting on their personal photos can be interpreted as stalking behaviour that ultimately gives rise to claims of harassment.

The Report highlights the pervasive nature of the conduct described above and its damaging effects on workplace participants, especially young women. It is no surprise therefore that many capable intelligent employees leave their employer without ever raising the reasons for departure. This only exacerbates the issue and the undercurrent of harassment that may exist in the workplace. It is our view that failure by organisations to take matters of sexual harassment seriously in all its forms, leads to the belief by men in positions of power that they are immune and can do as they wish. This is clearly evident from the recent exposure of Justice Heydon’s conduct.

Mechanisms to Remedy Incidents of Sexual Harassment.

Federal and State anti-discrimination legislation make sexual harassment in the workplace unlawful. The SDA confers additional powers to the AHRC to conciliate sexual harassment complaints and refer matters to the Federal Circuit Court or Federal Court; however, pursuing a claim in the Federal Courts is a complicated and invariably expensive means of seeking remedy. There have been calls to increase the scope for victims of sexual harassment to seek appropriate redress. The Fair Work Act 2009 (Cth) (“FW Act”) does not expressly prohibit sexual harassment however, it can be raised indirectly in matters brought to the FWC through:

• the general protections against ‘adverse action’ on the basis of a workplace right;
• the general protections against ‘adverse action’ on the basis of sex;
• the anti-bullying jurisdiction;
• unfair dismissal proceedings; and
• unlawful termination on the ground of sex.

The Report recommends that the FW Act be amended to:

• establish a sexual harassment jurisdiction in the FWC similar to the anti-bullying jurisdiction (whereby the FWC can conciliate between the victim and perpetrator of sexual harassment and issue a ‘stop sexual harassment order’);
• clarify that sexual harassment can be conduct amounting to a valid reason for dismissal; and
• updating the definition of “serious misconduct” to include sexual harassment.

Widening the scope of the Fair Work system to better, or more directly, deal with claims of sexual harassment does provide a relatively low cost means for victims to seek remedy and/or allow employers to deal with perpetrators more efficiently.

Where incidents of sexual harassment are so egregious, claimants may rely on work, health and safety laws and the criminal law for remedy. These include:

• the imposition of a positive duty on employers to prevent sexual harassment by eliminating or managing hazards and risks to an employee’s health and wellbeing;
• claims for workers’ compensation;
• the imposition of penalties on employers who fail to abide by their duty of care to provide a safe work environment;
• the awarding of compensation to victims; and
• criminal prosecution for rape or physical assault.

Finally, the Report has made recommendations to protect sexual harassment victims from defamation laws and media exposure which has traditionally discouraged victims from making a complaint. These include cases where private complaints have been made public by the media or where there is a lack of protection for alleged victims of sexual harassment where they are witnesses in civil proceedings or where their allegations are raised in circumstances where they have not made a formal complaint or given permission for the complaint to be made public. Protections being considered include a standard direction, or presumption in favour of, suppression of witness details in civil proceedings.

Prevention and Response to Sexual Harassment in the Workplace.

Considering the tremendous personal and financial costs that sexual harassment claims can cause victim employees and their respective employers, employers of all sizes have sought guidance on what ‘best practice’ for addressing, and ultimately preventing, workplace sexual harassment looks like. To better prevent sexual harassment, the Report recommends action in the following areas:

• Leadership – developing leaders within the business that set standards that make it clear sexual harassment will not be tolerated;
• Risk Assessment and Transparency – identifying and assessing risk by learning from internal and external past experiences;
• Culture – creating a culture of trust and respect that minimise the risk of sexual harassment occurring ; and
• Knowledge – ongoing practical workplace education and training to ensure a collective understanding of expected workplace behaviours.

Where sexual harassment has occurred, the Report recommends that employers take the following action:

• Support – prioritising employee wellbeing and provision of support, including before they make a report, and during any formal processes;
• Reporting – availing employees of greater options to make a report and instituting processes that allow employers to address sexual harassment other than launching a formal investigation (as employees can be discouraged from reporting if the matter becomes too regimented); and
• Measuring – the data at an industry-level, to help improve understanding of the scope and nature of the problem posed by sexual harassment.

In summary, it has become apparent that it is insufficient for employers to simply compile an ‘anti-harassment’ policy, file it along with a suite of other HR related documentation that may or may not be studied by employees and assume that a business is compliant. As sexual harassment can cause tremendous harm to the victim and become a financial disaster for inattentive employers, it is essential that business of all sizes takes a pro-active approach to preventing sexual harassment where it can and respond appropriately in the event that it does.

In addition to the above steps we recommend that responsible employers implement robust workplace training on appropriate workplace behaviours. The training should be designed to educate all workplace participants on what is and is not acceptable workplace behaviour and how failure to comply will not be tolerated.

We are Here to Help

We regularly advice clients regarding the implementation of robust workplace policies and training including in the areas of appropriate workplace conduct. If you require further information in relation to any aspect of this client alert or assistance in dealing with an employment law related issue, please feel free to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.