You don’t have to be a Hollywood big shot to be accused of sexual assault and harassment.
Around the world and here in Australia allegations of sexual assault and harassment have touched all industries and workplaces.
A recent survey conducted by the Australian Human Rights Commission found that 1 in 4 women surveyed had been sexually harassed at work in the past five years. Many of the recent allegations go back decades.
What is sexual harassment?
Sexual harassment is unwelcome sexual behaviour, which makes a reasonable person feel offended, humiliated or intimidated. It will be considered to be unwelcome if, in the complainant’s mind, it is unwelcome. The determination as to whether it is sexual will be proven is based on what a reasonable person would think.
A one-off incident can constitute unwelcome conduct; the conduct does not need to be a continuous or a repeated course of conduct to be considered unwelcome.
Unfair dismissal laws in Australia, and decisions of industrial tribunals in matters of alleged sexual harassment indicate that the facts must be clear and the evidence reliable for a dismissal to be upheld in the Fair Work Commission. Equally, tribunals have been generous in awarding damages to victims where it has been proven that the employer failed to protect them from sexual harassment
Each situation will be considered on the circumstances. A complaint of sexual harassment will not be dismissed because the complainant did not tell the alleged harasser to stop the unwelcome conduct. The court will consider a number of factors that may affect an individual’s ability to communicate the unwelcome nature of the conduct, including youth and inexperience, fear of reprisals and the nature of the power relationship between the two parties.
Conduct likely to be considered sexual in nature includes:
• touching, hugging or kissing;
• inappropriate staring or leering;
• insults or taunts of a sexual nature;
• repeated or inappropriate invitations to go out on dates;
• requests for sexual favours;
• repeated or inappropriate advances on email or social networking websites;
• intrusive questions about a person’s private life or physical appearance;
• sexual gestures, indecent exposure or inappropriate display of the body;
• sexually suggestive comments or jokes;
• sexually explicit pictures, posters, gifts, emails or text messages;
• requests or pressure for sex or other sexual acts;
• inappropriate physical contact; and/or
• stalking, actual or attempted rape or sexual assault.
Workplaces may be hostile. A sexually hostile work environment is one in which one sex is made to feel uncomfortable or excluded by the workplace environment. In such a workplace behaviours include the display of obscene or pornographic materials, crude conversation and offensive jokes. Such workplaces can be a particular problem for women working in male-dominated workplaces.
Every employer has a duty to take all reasonable (active) steps to prevent and deal with sexual harassment in the workplace.
Reasonable steps will vary depending upon the size, structure and resources of a particular workplace but should include:
• creating a healthy and safe work environment based on respect;
• developing and implementing a sexual harassment policy;
• Establishing a complaints/grievance procedure; and
• providing or facilitating education and training on sexual harassment.
Sexual harassment policies can also vary between workplaces. However, a sound sexual harassment policy should include at least:
• a concise definition of what does and does not constitute sexual harassment;
• an outline the internal procedures for making a complaint, carrying out an investigation and implementing disciplinary procedures;
• a clear statement that sexual harassment is unlawful behaviour and may be considered a criminal offence by a court;
• a provision for training of all staff and particularly those responsible for monitoring workplace behaviour;
• the options available for dealing with a sexual harassment complaint including the provision of counselling and support services; and
• identification of the potential consequences for breach of the policy including dismissal and/or criminal proceedings.
Given the heightened dialogue surrounding this issue it is important that employers place greater emphasis on ensuring employees are trained on appropriate workplace behaviour and that there are policies to prevent harassment occurring.
Training should ensure that employees clearly understand what sexual harassment is and is not, so as to reduce misconceived complaints.
A GRIEVANCE/COMPLAINTS PROCEDURE IS ESSENTAL
All employers must implement an efficient complaints procedure accessible to employees. It should:
• clearly state that the business has a strong stance on sexual harassment;
• be aimed at ensuring positive workplace relationships;
• deal with complaints consistently and judiciously;
• mitigate any liability under discrimination laws;
• reduce any adverse effect on those harassed;
• minimise the risk of a successful unfair dismissal claim.
DEALING WITH ALLEGATIONS OF SEXUAL HARASSMENT
Employers must provide every employee accused of sexual harassment with a “fair go”. They should be advised what they are accused of and that no acts of retaliation or unethical actions will be tolerated.
In some cases it may be appropriate to stand down the employee with pay pending a thorough investigation. Assure the employee that the matter will be dealt with quickly and ask the person to be patient while you conduct a thorough investigation.
Avoid making any assumptions about the outcome of the guilt or innocence of those accused.
For more information on how to deal with allegations of sexual harassment in the workplace, development of policies and procedures and conducting workplace investigations contact us at .