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

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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:

  1. create a working environment which is free from sexual harassment
    and where all members of staff are treated with dignity, courtesy
    and respect;
  2. implement training and awareness raising strategies to ensure
    that all employees know their rights and responsibilities;
  3. provide an effective procedure for complaints based on the
    principles of natural justice;
    32
  4. treat all complaints in a sensitive, fair, timely and confidential
    manner;
  5. guarantee protection from any victimisation or reprisals;
  6. encourage the reporting of behaviour which breaches the sexual
    harassment policy; and
  7. 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.