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How workplaces can comply with the positive duty to eliminate sexual harassment

With enforcement powers behind the positive duty to eliminate sexual harassment due to commence, two practitioners have set out the best practices employers should consider to ensure their workplace has a safe, supportive, and accountable environment.

user iconNaomi Neilson 02 January 2024 Big Law
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From December, the Australian Human Rights Commission (AHRC) has the power to commence an inquiry if it reasonably suspects a workplace is not complying with the positive duty to eliminate sexual harassment, representing a fundamental shift in discrimination law.

Speaking on The Lawyers Weekly Show, Elevate Consulting Partners founder Prabha Nandagopal said sexual harassment prevention had been a top priority when the Respect@Work report was released, “but that’s dropped dramatically”.

“No industry or organisation is immune, yet it is falling down on the business agenda,” Ms Nandagopal said on the podcast.


Ms Nandagopal said with enforcement now active, workplaces should be ensuring leaders are responsible and accountable for eliminating sexual harassment by treating the issue “like any other business imperative that’s backed by meaningful action”.

“It starts with leaders understanding sexual harassment is not about a few bad eggs in the workplace or sexual desire gone wrong.

“This is a societal problem driven by gender inequality, power imbalances and misuse of power. [Workplaces] should be ensuring prevention measures are addressing those root causes,” she said.

Also speaking on The Lawyers Weekly Show, byrne∙dean strategy lead Samantha Mangwana explained there are seven standards all organisations will have to make sure they’re meeting to comply with the duty: leadership and culture, knowledge, risk assessment, support, response, monitoring, evaluation and transparency.

While the commission has “spelled it out really clearly”, Ms Mangwana also suggested organisations keep a “checklist” of steps at the ready as the enforcement period commences.

The first is taking a look at power imbalances in the workplace, particularly as “abuse of power is at the core of sexual harassment”.

“Power isn’t just about seniority in the workplace, though obviously senior people have more power than junior people.

“Sometimes power can go with people who are big billers in a law firm, or perhaps they have sway over clients or other influence over other senior figures, or perhaps they’ve been around for a long time, or are popular,” Ms Mangwana clarified on the podcast.

“That signals to us there is something to home in on here.”

Ms Mangwana said this does not mean workplaces will need to think about “ditching the management structure”, but instead take steps to counter the risks that are inherent within that structure.

“So, are there actually genuinely safe avenues for staff to speak up about sexual harassment in the workplace? Not just a policy that’s on the intranet, but something people genuinely have trust in?

“If concerns are raised about senior people, about clients, it’s important that, given the hierarchy, absolutely everyone is held accountable and to the same standards,” Ms Mangwana said.

The other big area to consider is gender inequality, she said.

Ms Mangwana explained this is not just in the numerical domination of men to women, but in issues such as the gender pay gap and the uneven gender divide within senior management levels.

Ms Nandagopal said organisations tend to their diversity efforts on entry-level positions, and while workplaces are seeing more gender-diverse graduates, “senior leadership and boards are still homogeneous, so organisations need to be integrating”.

“It’s usually because of a cultural bias and structural inequalities, and in the unconscious bias in recruitment, retention and promotion processes,” Ms Nandagopal said on the episode.

Ms Nandagopal said another important consideration is how a workplace responds to reports of sexual harassment.

“[Workplaces should be] ensuring the aim is to minimise harm to impacted individuals and offer support rather than responding through a lens of legal and reputational risks, which is still what I’m finding organisations are doing,” Ms Nandagopal said.

Related to this, Ms Mangwana said there should be a discussion about who will have “direct responsibility” for this.

“That might be speaking to the board or the partnership about what’s happening, what the findings are so far, what actions are being taken, and then flowing on from that to communicate more widely with the restore the firm,” Ms Mangwana said.

Finally, Ms Mangwana said not to panic.

“Lawyers can take a deep breath here; this is manageable.

“I have noticed many organisations do panic when it comes to dealing with sexual harassment, as if it has come out of thin air with no warning, and they don’t know where on earth to start.

“But really, the lessons from the approach of the commission and what’s been put together is a clear methodology, and it really does work,” Ms Mangwana said.

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