Employers around Australia will need to review and centralise sexual harassment prevention initiatives in light of the new duty in the Sex Discrimination Act 1984 to take “reasonable and proportionate” measures to prevent sexual harassment.
The nature and extent of this positive duty will be the subject of much legal argument. But what is clear is the intent to shift the emphasis from a complaints-based model to one where employers must continually assess whether they have taken reasonable and proportionate measures to prevent unlawful conduct from occurring.
This is about being proactive and doing more to invest in prevention than was previously required. The aim is to drive persons responsible for controlling a business or undertaking (PCBU’s) – which includes employers – to adopt an approach akin to the safety standard.
What does this mean for employers and other PCBUs?
While many employers have a range of initiatives directed at creating a respectful work environment where employees act appropriately, it will now be necessary to consider sexual harassment risks and risk mitigation measures specifically.
Anecdotally, a lot of employers already take steps such as:
- Keeping updated on law reforms
- Implementing policies and training, with periodic reminders
- Incorporating sexual harassment into work health and safety procedures, and
- Having complaint mechanisms that address power imbalances.
But these might not be to be enough to defend a claim based on a failure to meet the positive duty.
While the Australian Human Rights Commission (AHRC) has not yet released its guidance material, the Victorian Equal Opportunity and Human Rights Commission provides guidance on what steps large corporate employers are expected to take to discharge the equivalent state duty, which may provide insight into what will be on the AHRC list. While not prescriptive in nature, this material highlights the above point about greater proactivity, akin to the safety standard.
Ultimately, it will be for the Courts to determine whether any individual employer has taken the measures that are “reasonable and proportionate” for its business. But whether because of the law, regulation guidance material, or community expectation, we predict employers will come under pressure to have a renewed focus on what can be done proactively to prevent workplace sexual harassment. The type of initiatives that may need to be considered by leading employers are:
- A clear governance framework to deal with the prevention of sexual harassment
- Identification of risk factors and assessment of the steps available to control those risks
- Specific implementation plans, supported by measurable outputs which are publicly reported on
- Specific accountability supported by KPIs in job descriptions, performance goals, bonus structures, recruitment and promotion processes
- Regular, confidential and anonymous staff surveys about experience of sexual harassment, knowledge of the law and willingness to report, and
- External experts and conduct of regular compliance audits.
Practical implementation for employers
The key takeout is that for many employers, their existing strategies will not be enough to demonstrate compliance with the new duty. The new legal duties bring a strong risk prevention lens, more akin to the risk assessment and controls procedures adopted by safety professionals. This continues the trend we have seen for many years now of treating sexual harassment, and other kinds of gendered violence, as both an employment and work health and safety issue.
Employers will be assessing their sexual harassment preventative measures against the AHRC material (when available) to assess what the gaps are, taking an “if not why not” approach internally to stress test, and document, the reasons why any specific identified steps are not “reasonable and proportionate” for any particular business.