Unless you have missed the major news headlines in the past year, you would be aware of the downfall of Hollywood heavyweight Harvey Weinstein due to sexual harassment allegations, and the subsequent opening of the floodgates for many sexual assault claims being made against high profile figures.
As a result of these allegations, hundreds of the biggest names in the entertainment industry endorsed the creation of the ‘time’s up’ movement, an initiative aimed at raising awareness of the sexual harassment, sexual assault and mistreatment of both men and women that has, and continues to occur, in the industry and in many instances going back decades.
The ‘times up’ movement was a prominent focus of the 2018 Golden Globe Awards and the BAFTA’s, where many stars donned black attire in honour of the campaign and the fight against gender inequality and sexual harassment in all industries, occupations and countries and in support and solidarity of the movement.
This issue is not just unravelling in Hollywood either. Here at home, we have seen prominent television and acting personalities Don Burke and Craig McLaughlin come under the microscope for alleged sexual assault and abuse allegations, some stemming back to the late 1980’s.
Where to from here?
If you are an employer, now more than ever is the time to ensure that you have the correct policies and procedures in place and that you also have a thorough understanding of your obligations under the relevant legislation, to ensure yourself, your business and your employees are protected, as much as possible.
Essentially, employers are required under anti-discrimination laws, both State and Federal as well as the Fair Work Act 2009 (Cth) and the Sex Discrimination Act 1984 (Cth), to provide employees with a safe working environment, that is free of discrimination, harassment or bullying.
A broad definition of sexual harassment includes any unwelcome sexual conduct that a reasonable person would consider offensive, humiliating or intimidating to the person being harassed. Not only is the definition broad, but a one-off incident can be deemed to constitute harassment.
As an employer, it is imperative that you:
have a clear, well-drafted sexual harassment policy in place;
effectively communicate the policy to staff, including employees/contractors;
provide ongoing training to employees on sexual harassment, how to identify it and how to deal with it;
properly enforce the policy to ensure compliance;
implement a comprehensive internal procedure for handling complaints and a specific person who is authorised to take and investigate complaints;
have an action plan for remedial action if/when sexual harassment occurs, including thorough investigation and appropriate disciplinary outcomes if required.
A common theme that we see occurring with clients is that they may have a sexual harassment policy in place, however it is not communicated to staff, nor is it properly implemented or enforced. The fact that a sexual harassment policy is in place is not sufficient to satisfy the stringent requirements on employers if it is not properly communicated to staff, and it is not properly implemented or enforced, and is seen to be ‘window dressing’. In the event of a sexual harassment complaint or action, the presence of such a policy will unlikely be of any assistance.
Vicarious Liability
Although the harasser is primarily responsible for their own indecent behaviour, in many cases you as the employer can be held vicariously liable for their behaviour if you are unable to evidence the steps you have taken to prevent the harassment from occurring. This includes harassment that occurs in connection with a person’s employment, including events sponsored by the employer (e.g. conferences, seminars, workshops), work-related social functions (such as Christmas parties) and business trips. Another area for employers to consider is the use of the businesses phones, tablets, computers or laptops to harass another person.
There are no specific requirements set out under the Sex Discrimination Act 1984 (Cth) for employers, and each case is determined on its own individual basis (having regard to the size of the business, resources of the organisation and other factors). However, an employer would generally be expected to have implemented and complied with the following steps (which has been provided by the Australian Human Rights Commission):
Steps to prevent workplace discrimination and harassment
1. Have a strong and clear policy on discrimination and harassment and make sure it is communicated effectively in the workplace.
2. Ensure there is clear, unambiguous and visible support from senior management for the policy.
3. Develop a procedure to respond to internal complaints about discrimination and harassment in a fair, timely and effective way.
4. Treat all complaints seriously and investigate them promptly.
5. Appoint and train harassment contact officers of both sexes with whom employees can discuss any questions, concerns or complaints about discrimination and harassment.
6. Ensure that all staff are aware of the organisation’s policies and procedures regarding discrimination and harassment.
7. Regularly review these policies and procedures to ensure they are up to date with the law and best practice, and ensure that any updates are clearly communicated to staff.
8. Provide regular training to staff to ensure they understand their workplace responsibilities and to identify and respond to incidents of discrimination and harassment.
9. Provide information about external agencies, such as the Australian Human Rights Commission, that can provide advice about dealing with complaints of discrimination and harassment.
10. Monitor the workplace environment and culture, using processes such as confidential staff surveys.
11. Ensure that managers and supervisors are trained effectively to understand their responsibilities to proactively identify and deal with discrimination and harassment issues. Check that they are fulfilling these responsibilities through regular performance appraisals.
12. Regularly monitor strategies to prevent discrimination and harassment to ensure they are working effectively.
Affinity Lawyers is well placed to provide you with comprehensive legal advice in relation to your rights and obligations under the various anti-discrimination laws, as well as the Fair Work Act 2009 (Cth) and the Sex Discrimination Act 1984 (Cth). We are also able to assist you with drafting a comprehensive sexual harassment policy and provide you with advice in relation to implementation, enforcement and investigation procedures. Please contact one of our friendly and experienced Gold Coast Lawyers today on 5563 8970 to arrange your consultation.
