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Employers and Sexual Harassment
Opinion piece by Sex Discrimination Commissioner Pru Goward. Published in the the Australian Financial Review, 8 April 2004
If the answer's prevention, what's the problem?
The problem is liability, legal liability. Under the Sex Discrimination Act 1984 (Cth), employers large and small may be at least vicariously liable for incidents of sexual harassment involving their staff. This includes incidents on business premises, as well as at business functions such as a staff dinner. If the employer has perpetrated the harassment or knowingly permitted it, then the employer may incur direct or accessory liability.
Employers should know that almost invariably a complaint, even if conciliated by lawyers or Commissions such as my own, the Human Rights and Equal Opportunity Commission (HREOC), will cost the employer more than it costs the guilty employee, thanks to their greater capacity to pay. This is more so for matters that reach the courts.
The other problem with sexual harassment is, of course, the impact this has on the victim, those co workers who witness it and the general sense of workplace order and security. It goes without saying that men and women have the right to work without exposure to sexual harassment, but rather than plod through the arguments about the rights of workers, let's stay with the problem for bosses.
There's a lot wrong with the Sex Discrimination Act, but its reliance on common sense is one of its strengths. Reasonableness is especially important in determining employer liability for sexual harassment. To avoid vicarious liability for sexual harassment employers must take all reasonable steps to prevent it occurring in their workplaces. This means, for example, that small employers may reasonably have less expected of them than large employers. A recent Federal Court judgement suggested the circulation to newly-recruited staff of a "brief document" outlining the nature of sexual harassment, the sanctions against it and the grievance procedure would be reasonable for a small employer. Take note, all of these measures are preventive.
HREOC has just released the results of the first national (statistically valid) survey of sexual harassment in the Australian community. In the workplace, 18% of adult workers claimed to have experienced at least one incident of sexual harassment (28% of female workers, 7% of male). There were some surprising take outs for employers and it is worth briefly listing them:
- Almost half of workplace harassment was between co workers. It means bosses have to think harder about creating an anti harassment climate that is often beyond their physical domain. Afterall, bosses often do not eat in the same lunch room, read the same magazines, share the locker rooms or check up on worker's email traffic. Perhaps sometimes they should, but in any case, this needs to be directly addressed in brochures and staff seminars.
- Almost all (87%) of co workers who witnessed it did something about it. They told the boss, confronted the harasser or comforted the victim. Bosses can be sure this is a morale issue.
- Bosses deal well with complaints once they are brought to them; the survey reported high levels of satisfaction with management's handling of complaints. In a majority of cases harassers were disciplined, although in a significant minority of cases the worker making the complaint was disciplined, dismissed or suffered detriment.
- A third of all unreported incidents were not reported because the staff member involved believed it was too trivial to warrant reporting. A quarter said they could manage it themselves. This is understandable and welcome common sense, except in those cases where it reflects a staff member's ignorance of the law. Inevitably people do find out about their rights and ignorance is no defence for employers.
- Forty two per cent of unreported incidents were not reported because the victim feared reprisals such as dismissal. This may be because employers deal well with complaints once made because of litigation risk, but do not want to encourage employee awareness of the right to complain. The absence of prevention programmes would suggest this. As our review of complaints to HREOC established last year, 57% of them involved employers who had not implemented their anti harassment policy, although two thirds actually had one!
- Count in legal fees, payouts and the cost of staff turnover (77% of those who had taken a complaint to the Commission were no longer actively working for their employer) and employers need to think harder about prevention.
The outcome of this survey and the revised Code of Practice for employers, (drafted in consultation with employer organisations) are clear: Employers now have the tools and the information. They are on notice. Workers who harass others (men and women) are on notice.
The age of innocence is over.
Last updated 23 June 2004.
