Making workplace sexual harassment a thing of the past
While sexual harassment is not a new issue, in recent years there has been a growing awareness of employee rights when it comes to harassment of any kind in the workplace, writes Talitha Maugueret.
The #MeToo movement has been responsible for shining an unrelenting spotlight on sexual harassment and has resulted in Australian employers increasingly recognising the importance of having robust policies and procedures in place to prevent and respond to workplace sexual harassment. As a result, we have also seen a spike in men and women survivors of sexual harassment who want to seek help and are choosing to hold perpetrators accountable for their actions. Sadly, they are often met with complex and confusing sexual harassment laws.
On 5 March 2020, the Australian Human Rights Commission (AHRC) released a report into its findings regarding sexual harassment in Australia. The AHRC was overwhelmingly in favour of finding a new approach to addressing harassment in Australian workplaces, noting the current legal system is archaic and no longer fit to meet its purpose.
Of those surveyed by the AHRC:
• Almost two in five women, compared to one in four men, experienced workplace sexual harassment in the last five years;
• 45 per cent of those aged 18 to 29 were more likely to have been sexually harassed in the workplace compared to other age groups;
• 49 per cent said the same type of harassment had happened to them previously at the same workplace;
• 45 per cent of those who said they experienced the same type of sexual harassment previously, said it had been ongoing for 12 months or longer; and
• 52 per cent said they were sexually harassed at their workstation or where they worked.
The results of the AHRC’s report are concerning in circumstances where every employee has a right to be free from workplace sexual harassment.
While recent statistics show an improvement in reporting by survivors, there is still a lot of room for improvement with many survivors of sexual harassment choosing not to speak up because of fear of victimisation, negative impact on their reputation or career prospects or because they have a lack of faith in their employer’s complaints procedure.
Accordingly, Australian workplaces must create an environment in which employees are not fearful of raising allegations of sexual harassment, know their allegations will be taken seriously and that survivors will be supported as part of any process.
Employers, irrespective of size or industry, should consider education and training, policies and procedures to prevent sexual harassment in their workplaces. They have a business interest in responding to sexual harassment as failure to do so can have considerable consequences. Sexual harassment in the workplace is not only detrimental to the victim but it also represents a cost to employers including:
• Lost productivity;
• Staff turnover;
• Negative impact on workplace culture;
• Resources associated with responding to complaints, litigation and workers’ compensation; and
• Reputational damage.
In light of the current context of workplace sexual harassment it is apparent that reforms in this area are still needed, some of these reforms should include – but are not limited to:
1. Regulations that hold employers accountable under work health and safety legislation and anti-discrimination legislation to take necessary steps to prevent and respond to sexual harassment in their respective workplaces, thereby placing the burden on the employer, instead of the employee. Further, empowering a regulatory body to enforce the law and hold employers accountable would increase compliance by employers.
2. Prevention and response procedures that appropriately respond to sexual harassment which are victim centered and adaptable to changing needs.
3. A better legal and regulatory framework to reinforce human rights laws in the workplace. For example, extending liability for sexual harassment to individuals who aid or permit another to sexually harass a person.
4. Prevention of sexual harassment through education, media and community-wide initiatives that raise awareness ensuring employees understand what actually constitutes sexual harassment.
5. Increase support for survivors by increasing funding to legal services and ensuring specialist counselling services are available to survivors of sexual harassment.
6. Greater external oversights to ensure employers take necessary steps to prevent sexual harassment and respond accordingly when allegations of sexual harassment are made.
7. Improve the complaints process by removing the cap on compensation and six-month time limit to make a complaint to the AHRC.
Overall, it is important to acknowledge how far we have come since the #MeToo movement started in 2006. The movement has opened a dialog between the employee and their employer who both have a vested interest in eradicating workplace sexual harassment. Nevertheless, we still have a lot of work to do in eliminating workplace sexual harassment and ensuring appropriate protections for survivors.
Together, we have the ability to make sexual harassment an issue of the past.
Talitha Maugueret is an employment lawyer at McDonald Murholme.