Sexual Harassment (A Code in Practice) - A Short Guide to the Code of Practice

Sexual Harassment
(A Code in Practice)

4. A Short Guide to the Code of Practice

4.1 General principles

Every employer, regardless of size, must take all reasonable steps to prevent sexual harassment in the workplace. This means that employers must actively implement precautionary measures to minimise the risk of sexual harassment occurring and to respond appropriately when harassment does occur.

Under the Sex Discrimination Act, an employer may be held vicariously liable for sexual harassment when the employer has not taken all reasonable steps to prevent sexual harassment in the workplace.

What constitutes all reasonable steps is not defined in the Sex Discrimination Act and is determined on a case by case basis. What is reasonable for a large corporation may not be reasonable for small business. When deciding what level of preventative action is reasonable, employers should consider the nature of their workplace, including the following.

The size and structure of the organisation: large organisations may need to organise formal information and training sessions to ensure that all employees are aware of and understand the organisation’s sexual harassment policy. In a small business it may be reasonable to provide copies of the policy to employees and have an informal discussion with employees to ensure they understand the policy.
Available resources: in a large organisation, it might be reasonable that a budget be allocated to sexual harassment training and all employees attend the training. In a small business where finances are limited it may not be reasonable to send each employee to sexual harassment training, but instead the employer could ask that each employee read the sexual harassment policy and fill out a questionnaire designed to ensure that the employee understands the policy.
A history of sexual harassment and gender hostility: employers may have to take particularly strong steps to combat harassment in such circumstances.
Any other relevant factor, including geographic isolation of the work location, duties which require employees to work in close physical proximity or where there are “live-in” arrangements.

There are two main actions that employers must take to avoid liability for sexual harassment.

Take steps to prevent sexual harassment from occurring: in order to prevent sexual harassment an employer should have a sexual harassment policy, implement it as fully as possible and monitor its effectiveness.
If sexual harassment does occur, take appropriate remedial action: in order to remedy sexual harassment an employer should have appropriate procedures for dealing with complaints once they are made.

4.2 Explanatory notes

It is not possible to guarantee employers that they will not be vicariously liable for sexual harassment, even if they take particular steps to prevent harassment. This is because liability is decided by courts on a case-by-case basis. However, the case law does provide some guidance for employers on how they can meet their legal obligations.

In short, there are two main actions that employers must take to avoid liability for sexual harassment:

1. take steps to prevent sexual harassment from occurring; and

2. if sexual harassment does occur, take appropriate remedial action.

To prevent sexual harassment an employer should have a sexual harassment policy, implement it as fully as possible and monitor its effectiveness.

In order to remedy sexual harassment an employer should have appropriate procedures set up for dealing with complaints once they are made.

The next sections give practical advice to employers on how to prevent and remedy sexual harassment. Small businesses should also refer to Chapter 6.

4.2.1 Preventative measures

The key to preventing sexual harassment is for employers and management to make it clear to every employee and workplace participant that sexual harassment is unacceptable in the workplace. This can be done by developing a clear sexual harassment policy, communicating it to each workplace participant and making sure that it is understood. In addition, it is important that appropriate behaviour be modelled by management throughout the workplace.

A written policy on its own is insufficient. A policy that is not implemented through communication, education and enforcement will be of little or no use in discharging liability.

Workplace example: Internet and e-mail

Use of Internet and e-mail has transformed the way that workplaces communicate, but they can also be used, intentionally or otherwise, as a form of sexual harassment.

Deliberate harassment using the Internet may include downloading offensive screen savers and loading them onto a colleague's computer, sending derogatory e-mails or e-mailing pornographic material.

A particular problem with e-mail is that people tend to think of it as a private form of communication. Nothing could be further from the truth: once an e-mail is sent it can be passed on to any number of people, all with the person's or organisation's name attached. The practice, of e-mailing "jokes", offensive material and pornography to workmates, or using workplace computers to e-mail this material externally, is fraught with problems since there is no way of guaranteeing that the material will not offend at least one of its recipients.

In addition, use of the Internet and e-mail to access or communicate sexual material can contribute to a hostile working environment, where employees are exposed to offensive material in shared offices, on printers or walking past others' desks.

In order to prevent sexual harassment by the Internet and e-mail employers should:

make it clear to employees, through an Internet policy that is clearly communicated to all staff, that inappropriate use of Internet and e-mail will not be tolerated;
direct staff not to forward offensive e-mails from another source; by doing so they make themselves responsible for the material;
warn employees that e-mail communications are not private: one way of doing this is to suggest to employees that they not send any e-mail that they would not be happy to see displayed on a company notice board;
warn employees that evidence of e-mails sent and web sites accessed remains on a computer system even after they have been deleted by individual users; and
explain that what is a joke to one person may well be offensive to another and that sexual or offensive material does not belong in the workplace. ³¹

Below is a checklist on the general steps necessary to prevent sexual harassment, followed by guidelines specifically on writing a sexual harassment policy.

Guidelines in Practice: How to prevent sexual harassment

It is recommended that employers take the following steps to prevent sexual harassment.

Get high-level management support

Obtain high level support from the chief executive officer and senior management for implementing a comprehensive strategy to address sexual harassment.

Write and implement a sexual harassment policy

Develop a written policy which prohibits sexual harassment in consultation with staff and relevant unions. A suggested format is discussed at 4.2.2.
Regularly distribute and promote the policy at all levels of the organisation.
Translate the policy into relevant community languages where required so it is accessible to employees from non-English speaking backgrounds.
Ensure that the policy is accessible to staff members with a disability.
Ensure that managers and supervisors discuss and reinforce the policy at staff meetings. Verbal communication of the policy is particularly important in workplaces where the literacy of staff may be an issue.
Provide the policy and other relevant information on sexual harassment to new staff as a standard part of induction.
Periodically review the policy to ensure it is operating effectively and contains up to date information.

Provide information and training

Display anti-sexual harassment posters on notice boards in common work areas and distribute relevant brochures (these may be obtained from HREOC, State and Territory anti-discrimination agencies and/or relevant unions).
Train all line managers on their role in ensuring that the workplace is free from sexual harassment.
Conduct regular awareness raising sessions for all staff on sexual harassment issues.

Encourage appropriate conduct by managers

Line managers should understand the need to model appropriate standards of professional conduct at all times.
Include accountability mechanisms in position descriptions for managers.
Ensure that selection criteria for management positions include the requirement that managers have a demonstrated understanding of and ability to deal with discrimination and harassment issues as part of their overall responsibility for human resources.
Check that managers are fulfilling their responsibilities through performance appraisal schemes.

Create a positive workplace environment

Remove offensive, explicit or pornographic calendars, literature, posters and other materials from the workplace.
Develop a policy prohibiting inappropriate use of computer technology, such as e-mail, screen savers and the Internet.

4.2.2 Writing a sexual harassment policy

A key aspect of prevention is the development and promotion of a written policy which makes it clear that sexual harassment will not be tolerated under any circumstances. Some employers incorporate information on sexual harassment into a general workplace harassment policy which covers other forms of unlawful harassment (such as harassment on the grounds of race, disability, sexual preference or age). Others decide there is a need for a stand alone sexual harassment policy, particularly if sexual harassment is a common or recurring problem within the workplace. Both options are valid and it is up to employers to decide what is most appropriate for them. If a general policy is adopted, however, it is important that the different types of harassment are well-defined and addressed comprehensively. If the policy is too broad or generic its impact and clarity may be compromised.

It is recommended that an organisation officially launch its sexual harassment policy at a full staff meeting. In a large organisation, the chief executive officer or a senior management representative should endorse the policy and emphasise the fact that all staff are required to comply with it.

An effective means of ensuring that the policy is promoted on an ongoing basis is to periodically put a copy in pay slips. Policies can also be promoted by e-mailing copies to employees and putting a copy on the company Intranet. The policy should also be displayed on notice boards and included in personnel manuals. Employers should provide the policy to new staff as a standard part of induction. Employers may want employees to sign a copy of the policy acknowledging that they received and understood it.

To ensure that the policy is widely promoted and regularly updated, responsibility for circulation and review should be allocated to a specific position or area.

Guidelines in Practice: How to write a sexual harassment policy

A sexual harassment policy should include the following.

A strong opening statement on the organisation's attitude to sexual harassment

This should state that the organisation is committed to ensuring that the working environment is free from sexual harassment, that it will not be tolerated under any circumstances and that disciplinary action will be taken against any employee (or agent) who breaches the policy. To give the policy credibility and maximum impact, the opening statement should appear above the signature of the chief executive officer.

An outline of the organisation's objectives regarding sexual harassment

This demonstrates that the organisation is committed to a comprehensive strategy for eliminating sexual harassment. Employers may wish to consider something along the following lines.

This organisation aims to:

create a working environment which is free from sexual harassment and where all members of staff are treated with dignity, courtesy and respect;
implement training and awareness raising strategies to ensure that all employees know their rights and responsibilities;
provide an effective procedure for complaints based on the principles of natural justice;³²
treat all complaints in a sensitive, fair, timely and confidential manner;
guarantee protection from any victimisation or reprisals;
encourage the reporting of behaviour which breaches the sexual harassment policy; and
promote appropriate standards of conduct at all times.

A clearly worded definition of sexual harassment

There is no single, universally accepted definition of sexual harassment. However, the definition adopted should be consistent with the legal definition to avoid any confusion. The most important element to emphasise in any definition is that sexual harassment is unwelcome behaviour of a sexual nature. For example, sexual harassment can be defined in the following way.

Sexual harassment is any unwanted, unwelcome or uninvited behaviour of a sexual nature which makes a person feel humiliated, intimidated or offended. Sexual harassment can take many different forms and may include physical contact, verbal comments, jokes, propositions, the display of offensive material or other behaviour which creates a sexually hostile working environment.

Some examples of sexual harassment that are relevant to the particular working environment

The policy should identify specific examples of sexual harassment, such as:

uninvited touching;
uninvited kisses or embraces;
smutty jokes or comments;
making promises or threats in return for sexual favours;
displays of sexually graphic material including posters, pinups, cartoons, graffiti or messages left on notice boards, desks or common areas;
repeated invitations to go out after prior refusal;
"flashing" or sexual gestures;
sex-based insults, taunts, teasing or name-calling;
staring or leering at a person or at parts of their body;
unwelcome physical contact such as massaging a person without invitation or deliberately brushing up against them;
touching or fiddling with a person's clothing including lifting up skirts or shirts, flicking bra straps, or putting hands in a person's pocket;
requests for sex;
sexually explicit conversation;
persistent questions or insinuations about a person's private life;
offensive phone calls or letters;
stalking; and
offensive e-mail messages or computer screen savers.

What sexual harassment is not

The policy should explain that sexual harassment is not behaviour which is based on mutual attraction, friendship and respect. If the interaction is consensual, welcome and reciprocated it is not sexual harassment.

A statement that sexual harassment is against the law

The policy should make it clear that sexual harassment is against the law. Reference should be made to the federal, State or Territory anti-discrimination laws that apply to the organisation. Staff need to know that legal action could be taken against them for sexual harassment and that they could also be exposing the company to liability.

The circumstances in which sexual harassment may occur

The policy should state that a person may be sexually harassed by a supervisor or manager, co-worker, contractor, service provider, client or customer. Although not all these situations would necessarily give rise to a complaint under the legislation, it makes good sense to provide an internal procedure for dealing with any sexual harassment which could affect the welfare of employees. The policy should also state that sexual harassment is not just unlawful during working hours or in the workplace itself and not only between co-workers. The behaviour is unlawful in any work-related context, including conferences, work functions, office Christmas parties and business or field trips and includes interactions with clients and customers.

The consequences that can be imposed if the policy is breached

The policy should operate as a general warning to all employees of the consequences they can expect if they do not comply. Depending on the severity of the case, consequences can include an apology, counselling, transfer, dismissal, demotion or other forms of disciplinary action. Employees should also be informed that immediate disciplinary action will be taken against anyone who victimises or retaliates against a person who has complained of sexual harassment.

Responsibilities of management and staff

The policy should state that the organisation has a legal responsibility to prevent sexual harassment, otherwise it can be liable for the behaviour of its employees. This means that managers and supervisors have a responsibility to:

monitor the working environment to ensure that acceptable standards of conduct are observed at all times;
model appropriate behaviour themselves;
promote the organisation's sexual harassment policy within their work area;
treat all complaints seriously and take immediate action to investigate and resolve the matter;
refer complaints to another officer if they do not feel that they are the best person to deal with the case (for example, if there is a conflict of interest or if the complaint is particularly complex or serious).

All staff have a responsibility to:

comply with the organisation's sexual harassment policy;
offer support to anyone who is being harassed and let them know where they can get help and advice (they should not, however, approach the harasser themselves);
maintain complete confidentiality if they provide information during the investigation of a complaint. Staff should be warned that spreading gossip or rumours may expose them to a defamation action.

Information on where individuals can get help, advice or make a complaint

The policy should tell employees where they can get help if they are sexually harassed. Depending on the size of the organisation and the system that is in place for dealing with sexual harassment, employees can be advised to approach their manager or supervisor, sexual harassment contact officer, equal employment opportunity officer, human resources manager, industrial relations manager and/or their union delegate. Where possible a number of different contact people of both sexes should be provided so that staff can approach someone they feel comfortable with. It is not appropriate to only give staff the option of approaching their line manager because there may be cases where the manager is the alleged harasser or is perceived to be closely associated with the harasser and therefore not impartial.

A brief summary of the options available for dealing with sexual harassment

Employees should be advised of the different ways that sexual harassment can be addressed. This includes informal action such as confronting the harasser directly (but only if the individual feels confident enough to do so), making a formal complaint to a manager or using the organisation's internal complaints procedures. The way that complaints will be handled should be documented in the policy or in a separate complaints procedure. Staff can be referred to this if they require more information. Employees can also approach their union, HREOC or the relevant State or Territory anti-discrimination agency for information and confidential advice.

Case example: Employees in remote locations

Where employees are located in remote areas employers will need to be particularly careful that they have been made aware of sexual harassment policies and have access to any complaints procedures.

The respondent company had distributed a sexual harassment policy to staff that included details of sexual harassment contact officers. However, the policy was not explained to staff in any way and it was difficult, in practice, to make a complaint. Both of the contact officers listed were based in the head office, while the alleged harassment took place in a regional office. A complaint would have to be made by telephone during office hours when the complainant did not have the privacy to make such a call. The company was found to be liable for the sexual harassment of one of their employees by another.

Shiels v James and Lipman Pty Limited [2000] FMCA 2

4.2.3 Remedial measures

Even with the most effective and fully implemented sexual harassment policy, harassment can still occur. Employers need to know in advance how they will approach a complaint of sexual harassment in their workplace, and have procedures in place to deal with the harassment.

Advice on developing internal complaints procedures is provided below at Chapter 5.

Employers can also encourage employees to assist in the prevention of sexual harassment in the workplace. For example, employees will often be aware of inappropriate behaviour before management. Staff can be encouraged to report early concerns about unwelcome behaviour before it becomes a serious sexual harassment complaint.

Case example: Employer not vicariously liable

The respondent was a lawyer who, in connection with his employment, sexually harassed a client of his employer.

The employer, an Aboriginal corporation, was a small organisation and Federal Magistrate Rimmer accepted that it had made its expectations of employees in relation to harassment clear and so did not find the employer to be vicariously liable. The employer discharged its liability by:

establishing an appropriate complaint handling process;
directing senior field officers to orally inform all field officers that sexual harassment would not be tolerated in any circumstances and severe action would be taken in response to its occurrence;
organising workshops for staff on sexual harassment and discrimination.

In addition, the employer had given a number of warnings to the respondent about his behaviour in relation to a previous complaint of sexual harassment against him.

McAlister v SEQ Aboriginal Corporation for Legal Services [2002] FMCA 109

Case example: Employer vicariously liable

A woman worked as a catering attendant for a food services company in a canteen at which employees of the respondent company regularly ate. One evening an employee of the company exposed his genitals to her and then grabbed her vagina for a second or two before he walked away. The woman lodged a complaint of sexual harassment against the company.

In the action before the Victorian Civil and Administrative Tribunal the issue was whether the company could be held vicariously liable for the actions of its employee. The Tribunal found that the company's actions, which included investigating the assault and recommending disciplinary action against the employee, were insufficient to discharge its vicarious liability.

The following strategies were suggested by the Tribunal to prevent sexual harassment in line with avoiding vicarious liability.

"The preventive measures to be taken would ordinarily include the implementation of adequate educational programmes on sexual harassment issues and monitoring of the workplace to ensure compliance with its sexual harassment policies ...Educational programmes might include the dissemination of literature and the provision of seminars. There might be re-education programmes to ensure that employees received disseminated materials and understood sexual harassment policies."

The Tribunal emphasised the need for employers to communicate policies to all employees to ensure that they become aware of what may constitute sexual harassment and that it is unlawful. The Tribunal held that it is not enough to distribute materials only to managers, supervisors and contact officers.

Coyne v P&O Ports [2000] VCAT 657

Guidelines in Practice: How to remedy sexual harassment

It is recommended that employers take the following steps to deal with the occurrence of sexual harassment.

Implement an internal system for dealing with sexual harassment complaints or adapt existing complaints procedures for this purpose. More information on setting up a complaints procedure is at Chapter 5.

Ensure that the organisation’s policy on harassment provides employees with advice on what to do if they are sexually harassed. Employees should be given information on:

how to deal with the harassment themselves (employees should not be pressured into pursuing this option and should only confront the harasser directly if they feel confident enough to do so);
speaking to their supervisor, manager or other officer who has responsibility for dealing with sexual harassment;
lodging a formal complaint through the organisation’s complaint/grievance procedure; and
approaching an external organisation such as their union, HREOC or a State or Territory anti-discrimination agency.

Case example: Large employer vicariously liable

A female client of a bank was sexually harassed by the manager of her local branch in the course of accessing banking services.

In trying to establish that it had taken all reasonable steps to prevent sexual harassment, the bank gave evidence that it had circulated a code of conduct on sexual harassment, as well as a video, letters, an instruction, a brochure and an article. There was also a system of auditing managers to check their compliance with a requirement that they discuss sexual harassment with their staff every six months.

However, direct evidence from staff showed that there had been no recent training on sexual harassment. There were also indications from staff that they did not feel that they could or should take any action against inappropriate behaviour. The Commissioner found that there was virtually no focus on sexual harassment at the bank and that no training or auditing had been undertaken at the branch office where the harassment had taken place.

The Commissioner said that, as a large organisation, the bank has a responsibility:

...to ensure that its policies are communicated effectively to its executive officers, and that they accept the responsibility for promulgating the policies and for advising of the remedial action when breached.

Evans v Lee and Anor (1996) EOC 92-822

Footnotes

31. For further information on harassment and new technologies see Joe Catanzariti "Online and staying in line" Occasional Paper Western Australian Commissioner of Equal Opportunity, July 2000.
32. See the discussion of natural justice at 5.2.

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Last updated: 24 March 2004.