Every business is considered responsible for bullying and harassment, including sexual harassment, that occurs within the workplace. To protect your employees and business, employers need to know their obligations when it comes to raising awareness, preventing and appropriately addressing such behaviour.
What is harassment?
Harassment is any uninvited or unwelcome behaviour that offends, humiliates or intimidates another person, either intentionally or unintentionally. Harassment may occur as a single act, or in a series of incidents, persistent innuendoes or threats. Workplace harassment can take on many forms and may be silent or loud, subtle or open, private or public.
Harassment can take the form of workplace bullying or may be specifically aimed at someone with particular or different characteristics. The former type of harassment may amount to workplace discrimination, which is unlawful.
Although it is important to identify when an individual is being harassed or bullied it is equally important to recognise when they are not. For this reason, employers should always undertake an investigation into all allegations and determine whether bullying, harassment or discrimination has occurred or whether there has simply been a misunderstanding.
What is sexual harassment?
Sexual harassment in the workplace refers to unwelcome conduct of a sexual nature that a reasonable person would anticipate would possibly offend, humiliate or intimidate another person. Sexual harassment may be physical, verbal or written. The low threshold of ‘possibly’ reflects community standards of the unacceptability of sexual harassment in modern society.
Some conduct that may be tolerated socially could constitute sexual harassment as it is not welcome in the professional environment. Sexual harassment may include, however is not limited to:
- Unwelcome sexual comments or advances;
- Sending sexually explicit or suggestive emails or texts;
- Asking intrusive questions about someone’s personal life; or
- Continued use of inappropriate jokes.
Employers can be held vicariously liable for sexual harassment by their employees in the workplace. The ‘workplace’ is broad and extends outside the physical workplace to include work-related events and activities such as conferences, training courses and Christmas parties.
The one exception to liability is where the employer has taken all reasonable steps to prevent the harassment. Reasonable steps will be assessed on a case by case basis and factors such as the size and resources of the business, and whether there has been a history of sexual harassment in the workplace will be relevant.
What is involved in preventing sexual harassment?
In order to minimise the risk of liability, employers must take all reasonable steps to prevent sexual harassment within the workplace. At a minimum, every business must have a comprehensive workplace policy addressing issues of sexual harassment, harassment and bullying in the workplace.
A policy should clearly define what sexual harassment is, its unlawfulness, the consequences for the employee if they breach workplace policy, and information on where employees can seek help or make a complaint.
However, this in isolation will not be enough. To be effective, policies addressing harassment and bullying must be well implemented through ongoing training, communication, and of course, reinforcement.
Employers must also respond to all allegations of sexual harassment made by their employees and where necessary undertake a thorough investigation into the complaint. If an employer fails to take reasonable steps they may be held to be liable for sexual harassment under the Sex Discrimination Act 1984 (Cth).
The landmark 2014 decision of Richardson v Oracle Corporation raised the stakes for employers in cases of sexual harassment. The decision raised the bar for the amount of general damages awarded for pain and suffering of those who experience sexual harassment in the workplace. This case also highlighted the onus on employers to take all reasonable steps, finding an online sexual and harassment training package was not sufficient as it made no reference to the unlawfulness of sexual harassment in Australia, or the consequences of breaching Company policy.
Sexual harassment in the workplace is never an issue to take lightly. If you are unsure at all about how to deal with a complaint, be sure to seek advice. If you have any questions, please contact us to speak with a workplace specialist.