Sexual harassment in the workplace – and how to prevent it – is at the forefront of the public conscience. In June 2018 it was announced that the Australian Sex Discrimination Commissioner, Kate Jenkins, will conduct an independent national inquiry into sexual harassment in the workplace. This world-first review will be a comprehensive analysis of the current legal framework dealing with this issue.
In part 1 of our series on sexual harassment, we touched on the topical and prevalent issue of sexual harassment in the workplace, which came to light particularly following the allegations made against Harvey Weinstein. Here, in Part 2, Emily Shoemark, Senior Associate with Snedden Hall & Gallop Lawyers, focuses on what steps employers can take to prevent sexual harassment.

Why you need to act

Under section 106 of the Sex Discrimination Act 1984 (Cth) (‘Act’), employers can be held ‘vicariously liable’ if one of their employees is found guilty of sexual harassment. This means that the employers are responsible for the harassment.
Under the Act, employers can also be liable if they ’caused, instructed, induced, aided or permitted an individual to perform an unlawful act’. This is ‘accessorial liability’ and will arise when senior employees were aware, or should have been aware, of the real possibility of an act of sexual harassment occurring, but failed to act.

‘Reasonable steps’

An employer can avoid vicarious or accessorial liability where they can show they took reasonable steps to prevent the sexual harassment.
Most employers will ask: ‘What do reasonable steps look like?’ The answer to this question depends ultimately on a range of factors that can include:

  • the size of the organisation in question
  • the nature of its work
  • the relationship and level of control between management and employees
  • what policies and procedures are in place to try to prevent harassment.

This means that what is reasonable for one employer may be considered unreasonable for a different employer.
In STU v JKL (Qld) 2016, the Queensland Civil and Administrative Tribunal held a hotel chain responsible for the conduct of one of its managers who sexually assaulted a colleague. The act occurred in a hotel apartment owned by the employer. The Tribunal held that the employer was liable because it failed to take appropriate steps. Most significantly, it failed to ‘inform its workers of their legal obligations and to provide the education and training necessary to ensure compliance’. The Tribunal was particularly critical of the employer because it was a large publicly listed company that had failed to put in place a relevant anti-discrimination policy.

A zero-tolerance approach

This case demonstrates the ‘zero-tolerance’ approach now taken in Australian law with regard to sexual harassment in the workplace. It also highlights the corresponding high expectations that employers must meet.
Regardless of their size, all organisations that employ individuals should:

  • have a clearly written policy dealing with sexual harassment in the workplace
  • clearly communicate the policy to all employees on a regular basis
  • investigate any reports of sexual harassment in the workplace in a prompt but thorough manner. (The next article of this series will focus on how to deal with sexual harassment claims in detail).

It is clear from the courts’ attitude that all organisations must take proactive reasonable steps to deal with sexual harassment. You are otherwise exposing yourself to liability for any acts of sexual harassment that occur.

How can Snedden Hall & Gallop Lawyers help you?

We can assist you with the preparation of an up-to-date discrimination and harassment policy that is consistent with current anti-discrimination legislation and relevant to your organisation. Alternately, we can review your current policy. Ask us to review your complaints and investigation procedures or advise you on preparing a procedure. Contact Snedden Hall & Gallop today on 02 6285 8000 or by email here.  You can find out more about our Employment team.

Emily thanks Senior Law Clerk, Gene Schirripa, for his contribution to this blog.
Further reading: The Weinstein effect and sexual harassment in the Australian workplace