Employers’ legal duty to prevent sexual harassment kicks in

The workplace Christmas party season is in full swing for 2023, seeing employers recalling past party incidents and issuing reminders to team members about respectful behaviour.

But this year and, as of yesterday, employers have more to be concerned about when it comes to sexual harassment.

Australian businesses now have a “positive duty” to prevent sexual harassment, with new sexual discrimination enforcement laws coming into place.

The timing is particularly interesting, given it coincides with a period when workplaces typically experience a spike of sexual harassment incidents, as they host end-of-year and Christmas party events, which often include alcohol.

But while workplaces may claim to be ready to try and mitigate sexual harassment at such functions — with the standard office email sent around reminding team members about boundaries and appropriate behaviour — they are not prepared for these new enforcement laws, according to new data from the Australian Institute of Company Directors (AICD).

The vast majority of ASX300 directors (85%) say that workplace sexual harassment ranks high on their board’s list of priorities. But less than half of these directors believe their organisation is prepared for the new positive duty obligations. There is also a stark gender gap in this finding, with just 32% of female directors saying their board is prepared compared to 45% of male directors.

Lawyer Prabha Nandagopal agrees that Australian businesses aren’t prepared for the shift in their legal obligations. Having worked as a senior legal advisor on the Australian Human Rights Commission’s national inquiry in 2020, she has since founded Elevate Consulting Partners, and she continues to see that workplace sexual harassment is pervasive in Australia.

She says that until now, the standard response frameworks have been ineffective, with one in three Australians reporting they have been sexually harassed at work over the past five years but fewer than 18% making a formal complaint, according to the latest Human Rights Commission data. Meanwhile, 40% of those who did make a formal report said that no changes occurred at their workplace due to their complaint.

And while the end-of-year festive season is always a period of heightened concern when it comes to sexual harassment, Nandagopal says that technology-facilitated sexual harassment is a growing issue and one that impacts employees all year round.

Technology-facilitated sexual harassment involves unwelcome sexual conduct in the workplace using platforms like WhatsApp and LinkedIn. She describes it as being perpetrated both within and beyond the physical location of the workplace and during and after working hours. She says that it’s particularly rampant in the retail and construction sectors, but that it happens in businesses of all sizes — and it’s not just up to big corporate businesses to take responsibility for the issue.

“Regardless of their size or resources, most organisations and businesses in Australia must satisfy the positive duty. This includes sole traders and the self-employed, as well as small, medium and large organisations, businesses and government.”

We’ve seen several employers facing massive payouts in damages to those impacted by sexual harassment, but it’s the reputational costs as well as the price a workplace culture pays that can cost a business far more than any direct damages.

As Nandagopal says, the costs can extend to productivity losses, reputation and legal risks, as well as to diminishing a business’s ability to attract and retain the best people. It can also turn off customers and investors, and lead to significant staff shortage issues.

So what should companies do to ensure they comply with the changes?

Nandagopal says leadership teams, including the board, must understand their positive duty obligations. They should consult with workers about sexual harassment, and identify circumstances that may increase the risk of sexual harassment. They should be reviewing policies, practices and response systems to ensure they meet the positive duty compliance framework developed by the Australian Human Rights Commission.

Further, she says employers must consider measures that will eliminate sexual harassment and sex discrimination, prepare a prevention and response plan, and invest in quality education and training facilitated by subject matter experts.

“We spend a third of our lives at work and we all deserve to be safe, feel respected, valued and given every opportunity to thrive. Its vital leaders are tuned in to the safety and wellbeing of their workforce,” she says.

Sexual harassment won’t end with this year’s Christmas party season. But with these new laws, we could be on the cusp of a significant change in how seriously leaders consider and respond to harassment.

This article was first published by Women’s Agenda.