Sexual Harassment
(A Code in Practice)
Foreword
After twenty years of federal law outlawing sexual harassment you might expect that employers and staff would be getting the hang of how to prevent and manage incidents of sexual harassment in the workplace. It is certainly true that the community is generally aware that it is illegal and undesirable and in business circles attention is frequently drawn to the financial and productivity penalties faced by employers if found liable. The Human Rights and Equal Opportunity Commission ("HREOC") released its first Code of Practice to assist employers manage sexual harassment in 1996.
Yet the evidence from both HREOC's review of complaints, A Bad Business, and HREOC's 2003 national telephone survey reported in 20 Years On: The Challenges Continue ...Sexual Harassment in the Australian Workplace suggests that sexual harassment is frequently not well managed by employers or managers. Occasionally this embroils the organisation in legal action but more often results in workplace disharmony and staff turnover that benefits none concerned.
The telephone survey is the first national survey of sexual harassment in the Australian community. The results suggest ways in which employers could better manage both the prevention and incidence of sexual harassment at work. There is also a growing body of sexual harassment case law that defines the legal meaning of sexual harassment for the use of all those whose task it is to prevent sexual harassment in their workplaces. The case law is also useful for those who may be involved in sexual harassment policy development as well as in the education of the wider community.
For these reasons I thought it important that the Sex Discrimination Unit of HREOC update the Code of Practice. As well as updating the Code to reflect the experience of sexual harassment in the community, relevant case law has been included to clarify how the principles of sexual harassment are likely to be interpreted by the courts. This is particularly important for understanding what the courts believe are reasonable responses to sexual harassment as well as the limits of liability for employers.
The Code of Practice is based on a number of principles, including that sexual harassment is a form of sex discrimination and for this reason is included in the Sex Discrimination Act 1984 (Cth). Results from the national telephone survey, for example, confirm that most sexual harassment involves men harassing women and in most of these cases, it is older men harassing younger women. A significant proportion involved older and more senior male workers harassing younger, more junior female workers. The Code of Practice reflects the importance of treating sexual harassment as a serious infringement of a person's right to work with dignity and respect and as a reflection of the gender aspects of power in the workplace and not, for example, as mistaken courtship.
The survey also suggests that sexual harassment becomes more serious if left unchecked. Sexual harassment may begin with verbal abuse, innuendo or unwanted sexual comments but may go on to involve behaviour such as propositioning, asking sexual favours, unwanted touching, assault or even rape. The Code of Practice reflects this in its emphasis on prevention, the need for induction programs for new employees and early intervention by managers. The Code provides advice to employers or managers on how to manage complaints in such a way that other laws (including privacy, defamation or unfair dismissal) are not breached.
Managers
and business owners function in a sometimes bewildering array of regulation,
state and federal. It is the purpose of this Code to enable employers
to develop appropriate mechanisms for the prevention and management of
complaints with reference to a single document. A more fundamental purpose
is to enable employers and managers to better understand how the law is
meant to work and provide them with a framework for understanding the
need for them to play a leadership role in providing a workplace culture
that does not tolerate or condone sexual harassment.
All the legislation and case law in the world will not stamp out sexual harassment if employers do not ensure that there is no place for it in their workplaces. Prevention is a great deal more difficult than implementing grievance procedures but is also crucial to workplaces in which merit is rewarded, discrimination not tolerated and equality fostered. These guidelines should go some way in assisting Australia's employers large and small, to take up the challenge of sexual harassment. Prevention as well as grievance and complaints management are important leadership challenges for Australian bosses and employers.
Last updated: 24 March 2004.
