Sexual Harassment in the Workplace

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1 in 5 complaints received under the Sex Discrimination Act involve a complaint of sexual harassment, and the vast majority of these take place in the workplace (1).

Over 28% of Australian women say they have experienced sexual harassment in the workplace, as well as 7% of men (2).

These statistics speak volumes as to the extent of the problem. In addition, the disparity between the statistics regarding women and men highlights the fact that sexual harassment poses a significant risk to women’s equal participation in the workplace, a risk which threatens to reduce the quality of the working lives of women, whilst simultaneously resulting in lost workforce opportunities for the Australian businesses.

This article discusses what constitutes sexual harassment, what the risks are to small and medium business, and how you, as managers, can prevent and respond to sexual harassment in your workplace.

What is sexual harassment?

The Sex Discrimination Act 1984 (Cth) defines “sexual harassment” as:

“an unwelcome sexual advance, or an unwelcome request for sexual favours” or “other unwelcome conduct of a sexual nature … in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated”

Some common examples of sexual harassment in the workplace include:

  • * Sending suggestive emails or texts
  • * Staring or leering
  • * Distributing pornographic images or links.
  • * Asking intrusive questions about one’s sexual history or orientation
  • * Making sexually natured jokes
  • * Unwanted touching
  • * Making sexual comments or gestures
  • * Unwanted requests to go out on dates
  • * Requests for sex
  • * Behaviour that may also be considered an offence under criminal law, such as physical or sexual assault, indecent exposure, stalking or obscene communications.

Risks and penalties to small business

Sexual harassment in the workplace is extremely damaging to your business. Risks include:

  • * Damage to your corporate reputation and loss of shareholder confidence
  • * Consumer distrust
  • * Reduced morale amongst staff
  • * High rates of absenteeism
  • * Reduced productivity
  • * Mental health repercussions for affected staff
  • * Legal action including the bringing of criminal charges

Don’t get caught with a compensation payout

If sexual harassment is determined by the Australian Human Rights Commission to have occurred under your watch, your business may also be liable to pay thousands of dollars in compensation to the claimant.

Case Study

An administrative officer claimed that a co-worker came into her office when she was alone and rubbed her shoulders. On another occasion the same coworker kissed her on the head. After the claimant told her co-worker that she was uncomfortable with such behaviour, the co-worker began standing very close to her during conversations and staring at her chest. The claimant reported the behaviour to her supervisor who allegedly laughed at her and made jokes about sexual harassment. The Human Rights Commission ordered her employer to pay $4,750 in compensation (3).

Your responsibilities to protect and respond

As a manager, it is your duty both to protect your employees from sexual harassment and to respond to allegations of such conduct appropriately and immediately.

To prevent sexual harassment in your workplace:

1. Encourage a respectful work environment. Ensure that all employees know you have a zero tolerance policy when it comes to any form of harassment. You can distribute this information via an email, through a meeting, or in a handout. Importantly, a zero tolerance approach can be strongly signalled by the behaviour and responses modelled by employers and managers. Any signs of unacceptable conduct should be handled swiftly and effectively and never minimised or ignored. These actions set appropriate expectations and promote a healthy and safe work environment.

2. Have a sexual harassment policy in place. A written sexual harassment policy ensures that your staff and managers are aware that sexual harassment is unlawful and will not be tolerated. Your policy should stipulate exactly what type of conduct is considered to be sexual harassment and should clearly outline the consequences of such conduct. Importantly, the policy should set out a clearly delineated complaints procedure, ensuring that your management team knows exactly how to respond to an allegation or complaint of sexual harassment in the workplace. You should engage a suitably experienced lawyer to help you draft this policy.

3. Communicate and enforce your policies. Everyone knows the best-worded policy isn’t worth the paper it is written on if it is shoved in a drawer. Your sexual harassment policy needs to be actively enforced and regularly reinforced. HR should be vigilant when it comes to monitoring staff behaviour in this regard. Further, your duty of care to prevent workplace harassment is not fulfilled until your staff understand their rights and obligations, standards of expected behaviour, and consequences of misconduct in this regard. Regular training sessions help to educate and remind staff about the types of conduct which will not be tolerated, how sexual harassment can be prevented, and the consequences of bad behaviour.

For further information about how to address and prevent sexual harassment in the workplace, and your legal obligations to do so, click here.

The Role of Workplace Culture

Many of those who experience sexual harassment in the workplace are afraid to report their experiences, out of fear that it could damage their career. Indeed, studies suggest that less than one third of workplace victims formally report their experiences (4). This fear is not unwarranted – those who do report sexual harassment are often labelled as troublemakers, ostracised by their colleagues, and forced to leave their jobs.

For this reason, cultural change is at the heart of the solution to sexual harassment in the workplace. Cultural changes are particularly necessary in male-dominated industries where sexual harassment tends to be more commonly tolerated and occasionally encouraged (5). Workplaces should focus on changing their tolerance for inappropriate behaviour, and educate bystanders to recognise and report sexual harassment. This places less responsibility on the person experiencing the harassment, and simultaneously addresses the systemic issues underpinning sexual harassment and the underreporting of it.

References

  1. https://www.humanrights.gov.au/listening-tour-fact-sheet-sexual-harassment-australia
  2. https://www.humanrights.gov.au/our-work/sex-discrimination/guides/sexual-harassment
  3. https://www.humanrights.gov.au/sites/default/files/content/sex_discrimination/workplace/bad_business/docs/casestudies.pdf 
  4. https://www.theguardian.com/world/2017/oct/18/kate-jenkins-on-how-australia-is-failing-sexual-harassment-victims
  5. https://www.theatlantic.com/business/archive/2017/11/organizations-sexual-harassment/546707/

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