Managing sexual harassment
in the workplace
By Petrine Costigan and Kate Green ǀ 1 May 2018
The Weinstein scandal that erupted in October 2017 triggered a flood of allegations against high profile men around the world.
But sexual harassment is much bigger than frontpage scandals. According to the 2016 Australian Bureau of Statistics, an estimated 53 per cent of women report being sexually harassed during their life. A recent study at the University of Sydney found that 51 per cent of university students were sexually harassed in 2016.
What is Sexual Harassment?
Sexual Harassment is usually defined as unwelcome conduct of a sexual nature where a reasonable person would expect the person to feel offended, humiliated or intimidated. Sexual harassment is prohibited under the Sex Discrimination Act 1984 (Cth) and the Anti-Discrimination Act 1977 (NSW).
Staring or leering at someone, making sexually suggestive comments or jokes, inappropriate advances of an employee on a social networking sites, and intrusive questions about a person’s private life or physical appearance may constitute sexual harassment.
There has been a significant increase in the damages awarded for sexual harassment, reflecting the change in community standards and expectations. The landmark 2014 decision in Richardson v Oracle Corporation Australia Pty Ltd , where the plaintiff was awarded $130 000 in damages for sexual harassment, was significant for rejecting the notion of a “permissible range” of damages.
A sexual harassment complaint may be made against individuals and their employers. Employers are not automatically liable for their employees’ sexual harassment conduct. However, an employer must show they have taken all reasonable steps to minimise the risk of sexual harassment in the workplace to avoid being held vicariously liable for an employee’s conduct.
What are “reasonable steps”
In the case of Richardson v Oracle Corporation Australia Pty Ltd  it was held that it was not sufficient to have policies, procedures and training in place that prohibit sexual harassment. It found that an employer should have a “lively and real interest” in the discipline for sexual harassment, and that it is important that employees are aware that it is against the law to sexually harass anyone in the workplace. Also, they need to identify the source of federal and state legislation that makes it unlawful to sexually harass anyone in the workplace.
The Weinstein scandal and the hashtag #MeToo movement have helped educate the public regarding sexual harassment and emboldened people to act if they have been subjected to sexual harassment.
Here are some steps to address the issue:
- Educate yourself and your employees about what constitutes sexual harassment and the legislation that makes it unlawful to sexually harass anyone in the workplace. The Australian Human Rights Commission’s and the Anti-Discrimination Board of NSWs websites provide excellent tools and material to assist.
- Implement a system to induct new employees and continually re-educate existing employees about what constitutes sexual harassment, and that it is unlawful.
- Act when a complaint of sexual harassment is made. Investigate the complaint, support the employee who has made the complaint and the employee who the complaint is made about. Ensure that any investigation is impartial, fair and provides procedural fairness to everyone involved.
About the authors
Petrine Costigan is director of Petrine Costigan Lawyers. Kate Green is a para-legal at Petrine Costigan Lawyers and law student at the University of Sydney.