According to the Australian Human Rights Commission, 71 per cent of Australians over the age of 15 have experienced sexual harassment. While that illustrates a larger social problem, it’s also a professional one. At work, 39 per cent of women have been sexually harassed, while 26 per cent of men has. Of these, only 19 per cent have ever made a formal report. Organisations play a critical role in preventing sexual harassment in the workplace.
What is sexual harassment?
Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated. It has nothing to do with mutual attraction or consensual behaviour.
Sexual harassment can take various forms. It can involve conduct such as:
- unwelcome touching, hugging or kissing
- staring or leering
- suggestive comments or jokes
- sexually explicit pictures, screen savers or posters
- unwanted invitations to go out on dates or requests for sex
- intrusive questions about an employee’s private life or body
- unnecessary familiarity, such as deliberately brushing up against someone
- insults or taunts of a sexual nature
- sexually explicit emails or SMS messages
- accessing sexually explicit internet sites
- inappropriate advances on social networking sites
- behaviour which would also be an offence under the criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.
Sexual harassment does not have to be repeated or continuous to be against the law. It can be a one-off incident.
The Me Too movement (or #MeToo movement), with a large variety of local and international alternative names, is a movement against sexual harassment and sexual assault. The movement began to spread virally in October 2017 as a hashtag on social media in an attempt to demonstrate the widespread prevalence of sexual assault and harassment, especially in the workplace. Because harassment at work is rarely reported, and even more rarely addressed in any serious manner, businesses may suffer from deeply toxic cultures, in which employees are routinely harassed. Not only does this mean businesses are failing to create safe work environments for their employees, it means low morale, lost productivity and increased employee turnover. In order to combat this issue, businesses need to develop a culture of accountability that treats sexual harassment seriously and acts to eliminate harassment altogether in the workplace.
Victims Don’t Feel Free to Report Harassment
The most worrisome statistic in the Human Rights Commission’s report is that only 19 per cent of victims of sexual harassment ever formally report it. Businesses that aren’t made aware of misconduct can’t act effectively to address it, which is why it is important to be proactive. Employers are more likely to reduce unacceptable workplace conduct by taking action at an early stage.
Importance of a Sexual Harassment Policy
It is important for employers to have a robust sexual harassment policy, which puts in place a process for making complaints and clearly sets out:
- the definition of unlawful sexual harassment;
- examples of what may constitute sexual harassment or other inappropriate behaviours;
- that sexual harassment is unlawful and prohibited in the workplace; and
- employees may be subject to disciplinary action if they engage in unlawful sexual harassment or other inappropriate behaviours in breach of the employer’s policies.
Policies and procedures preventing harassment assist employers in maintaining positive workplace relationships and can improve employee motivation and performance. In managing sexual harassment in the workplace, you may also have obligations under other laws, such as privacy, defamation, occupational health and safety and industrial laws.
Victims face backlash
Businesses are often more concerned about avoiding controversy than they are about actually managing misconduct. Moreover, the perpetrators of sexual abuse at work are often working in a higher position to their victims, allowing them to punish or victimise those who speak out. Nearly half of the victims who didn’t speak out did so because silently enduring the harassment would be easier than dealing with the fallout of a complaint.
Businesses rarely respond appropriately
Of those who report sexual harassment, 64 per cent experienced no changes, or suffer negative consequences after they made the report. Specifically, 19 per cent were labelled as “troublemakers”, 18 per cent were ostracised or attacked by other colleagues, 17 per cent left or were pushed out of their jobs, and 19 per cent were simply ignored.
30 per cent of harassment claims were handled by issuing a formal warning to the perpetrator. This may sound somewhat reassuring until we consider that this means that only 6 per cent of reported harassment cases results in any meaningful disciplinary measure. This means, ultimately, that sexual harassers and abusers nearly always keep their jobs and their positions of power over their victims.
Preventing Harassment in your Business
In order to keep your business from becoming part of the current statistics, businesses need to change how they approach the issue.
Any action (or lack of action) businesses take to discourage reporting harassment, such as labelling victims as troublemakers, violating their privacy by informing colleagues, or allowing perpetrators to hold positions of power over victims, is unacceptable and needs to be discontinued. Establishing confidential reporting protocols or access to senior leaders can break down barriers to reporting.
Besides halting the harassment of victims, businesses also need to treat every report of sexual harassment as a serious matter that deserves attention. Nearly all reports that are currently acted upon the result in a simple warning, rather than any actual punitive measures. Instead, businesses need to take a much more serious look at what kinds of behaviours perpetrators are engaging in, and remove those individuals from the workplace.
Build a supportive company culture
Besides improving how businesses handle complaints of sexual harassment, they also need to improve their company cultures. After all, 18 per cent of harassment victims reported suffering mistreatment by their colleagues as a result of reporting. To prevent this, it’s important to educate employees about the seriousness of sexual harassment, and the effect it has on individuals psychologically and in terms of their ability to work.
Addressing how the business handles the issue administratively is likely to also improve the attitude with which other employees see it as well. Moreover, more supportive company culture will encourage witnesses to come forward, which is important considering that 40 per cent of incidents is witnessed by a co-worker. While businesses will need to count on an increase in reporting of sexual harassment, their actual work environments will become safer and more productive as a result.
Employers Duty of Care
A duty of care is a legal duty to take reasonable care not to cause harm to another person that could be reasonably foreseen. Employers or businesses, or anyone who falls under the definition of a ‘person conducting a business or undertaking’ (a PCBU), has legal obligations under work health and safety laws. Employers must also satisfy their duty of care when it comes to addressing sexual harassment.
Annual Refresher Training
Workplace training ensures employees understand what sexual harassment is, the behavioural expectations of your organisation and their rights and obligations. Training should be ongoing and linked to employee’s obligations and rights under the company contract of employment and sexual harassment policy, which will also assist to identify unacceptable workplace behaviour.
Vicarious Liability
As an employer, you may be held legally responsible for acts of sexual harassment committed by your employees. This is called ‘vicarious liability’. The Sex Discrimination Act makes employers liable for acts of sexual harassment unless they have taken all reasonable steps to prevent it from taking place. While there is no uniform standard expected of employers in taking all reasonable steps, at minimum employers would usually be expected to:
- have an appropriate sexual harassment policy which is effectively implemented, monitored and communicated to all workplace participants;
- take appropriate remedial action if sexual harassment does occur.
Are you confident that you have taken all reasonable steps to ensure that your employees are not subject to sexual harassment?
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