Recent revelations concerning Harvey Weinstein, the US film producer who has allegedly harassed multiple people for decades in the film industry, has raised the issue of sexual harassment in the workplace.
In addition to Weinstein, British politics has been rocked by allegations of politicians behaving inappropriately toward their staff and journalists, and a major international soccer official has also been accused of sexual harassment.
The issue is so important because the psychological impact and trauma that sexual harassment has on people can have lasting career and personal impacts that include depression, and the severe legal consequences for employers and perpetrators.
It is therefore timely to review sexual harassment in the Australian workplace context. Sexual harassment is defined as any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated. Interaction, flirtation or friendship which is mutual or consensual is not sexual harassment.
Sexual harassment is a type of sex discrimination. The Sex Discrimination Act 1984 (Cth) makes sexual harassment unlawful in some circumstances. Despite being outlawed for over 25 years, sexual harassment remains a problem in Australia.
The Australian Human Rights Commission estimates that the issue affects women predominantly, with one in five experiencing sexual harassment in the workplace at some time. Additionally, one in 20 men also report experiencing sexual harassment in the workplace.
Identifying sexual harassment
It takes many different forms. It can be direct or indirect, physical or verbal, repeated or one-off and committed by males and females against people of the same or opposite sex.
Sexual harassment may include:
• staring, ogling or leering
• unnecessary familiarity, such as deliberately brushing up against a person or unwelcome touching
• sexually suggestive comments or jokes
• insults or taunts of a sexual nature
• intrusive questions or statements about a person’s private life
• displaying posters, magazines, screen savers or phone images of a sexual nature
• sending sexually explicit emails or text messages
• inappropriate advances on social networking sites
• accessing sexually explicit internet sites at work
• requests for sex or repeated unwanted requests to go out on dates.
The behaviour described above may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.
Sexual harassment at work is illegal. Sexual harassment can be committed by an employer, workmate or other people in a working relationship with the victim.
Impact of sexual harassment
Sexual harassment can lead to unhappy workplaces where the victim is fearful of attending work and the person loses interest and may in fact resign. This could lead to increased employment costs in having to recruit again for the role. Those that witness the harassment may also feel uncomfortable and have a decreased pride in working for the employer.
The worst-case scenario for an employer is legal action in a tribunal or Court where the employer is fined for allowing the harassment to occur. The perpetrator may also be ordered to pay a fine, but the reputational damage to an employer, and possible media coverage, is another cost that needs to be considered. Of course, high on an employer’s consideration must always be the welfare of its employees, and it is well known that can have deep psychological effects on workers (including major depressive episodes), both while employed and after employment.
General damages have historically been in the $10,000 to $20,000 range, however, in 2014 a court awarded an employee the sum of $100,000. This reflected the shift in community estimation of the value to be put on damages for this type of award. Further awards have been in the hundreds of thousands of dollars, particularly where severe psychological injury leads to an inability to work in future.
Policies and training/education
It is important for employers to know how to increase awareness of and prevent sexual harassment. It is also important for employees and co-workers to know how to identify sexual harassment and what avenues are available to them to make a complaint.
An employer should have an up-to-date policy that sets out the conduct that will not be tolerated at the workplace, as identified above. It should, importantly, set out the process that an employee should follow should they raise an allegation of sexual harassment. For example, how will it be investigated, internally or externally? Should a complaint be written or verbal?
The policy should also cover the wide use of new technologies such as mobile phones, email and social networking websites that create new areas where sexual harassment may occur.
An employer should also be conducting training on a regular basis to maintain all employees’ awareness of the behaviour and conduct expected in the workplace. That can be done on induction of the employee into the workplace, in group sessions and also in short meetings where other matters are discussed and the employer simply reminds staff of their obligations. Make notes of the meetings and the training so that can be used in any legal proceedings.
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