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Despite growing awareness, formal policies, and workplace education, sexual harassment within Australian professional environments continues to present a significant and frequently unaddressed challenge, a special counsel has shared.
Lawyers Weekly recently spoke with Attwood Marshall special counsel Claire Gibbs to explore why many employees still feel unable to speak up, how power imbalances and workplace culture can influence reporting, and the behaviours people may not realise constitute sexual harassment.
Furthermore, Gibbs highlighted the ambiguous nature of harassment in the workplace, with many employees perhaps acting inappropriately, without the knowledge that their actions technically count as harassment.
Additionally, Gibbs detailed the statutory safeguards available to staff, the avenues accessible should management fail to intervene, and the increasing obligation placed on organisations to proactively mitigate instances of harassment.
Why workplace sexual harassment remains underreported
Even with clear workplace guidelines and training programs, sexual harassment continues to present a major challenge across Australian organisations.
Yet, Gibbs noted that due to concerns about repercussions, workplace power dynamics, and the downplaying of unacceptable conduct often prevent individuals from reporting harmful incidents.
“A lot of people naively believe that sexual harassment is a thing of the past because we’ve got modern workplaces with policies and training in place, but the data tells us something really different; around one in three Australian workers have experienced workplace sexual harassment,” Gibbs said.
“There’s a lot of fear about whether you’ll be believed and supported, but also a very real fear about what will happen to you next if you do speak up.”
Beyond career concerns, social dynamics within the workplace also complicate an employee’s decision to come forward, Gibbs indicated.
“There’s also a lot of minimisation around the behaviour in the workplace.
“It is one of the issues that I’ve sort of encountered and revealed after working with a lot of people that have experienced sexual harassment, and they’ll get comments like, ‘Oh, look, I was only being friendly’, or ‘It was only a joke’, or ‘You’ve taken this comment the wrong way’,” Gibbs said.
“Over time, that really causes people to question their own judgement about what’s happened.”
“So when someone’s asking themselves, ‘Is this serious enough to report?’, what they’re really sort of contemplating is, ‘What’s this gonna cost me if I speak up about this individual or this particular conduct?’”
Understanding legal protections to prevent harassment
For staff members facing improper conduct, gaining insight into statutory safeguards serves as a pivotal measure towards addressing the issue.
Statutory frameworks are placing greater emphasis on organisations to proactively mitigate instances of harassment, shifting away from simple, reactive measures following a formal complaint.
“There isn’t one single legal pathway, and the appropriate option will depend on the circumstances and what the person wants to achieve,” Gibbs said.
“There are protections under federal and state discrimination laws, the fair work regime and also workplace health and safety legislation.
“An employee isn’t necessarily trapped inside their own employer’s internal complaints process or policy.
“If an employer fails to respond appropriately, there may be external avenues through bodies such as the Human Rights Commission and the Fair Work Commission.”
Gibbs further emphasised that legal protections are evolving to place greater responsibility on employers to stop misconduct before it occurs.
“The other real major shift in terms of legal protection is an increasing focus on prevention. Employers simply can’t just wait for a complaint and then say that they responded to it; the question is also what they did to prevent this from happening in the first place,” Gibbs said.
“Under the federal legislation, employers and businesses have a positive duty to take reasonable and proportionate measures to eliminate workplace sexual harassment and related unlawful conduct as far as possible.”
