Sexual Harassment Q&A – Do I have a Positive Duty to Act?

Question: As a manager, if I hear of sexual harassment happening, do I have to act on that even if the person says they don’t want me to do anything?

Answer: Yes. Managers and business owners have a responsibility to protect employees and an obligation to act on reports of serious issues such as sexual harassment.  This duty also expands to reports of concerns such as workplace harassment, discrimination and victimisation. In many cases you can be held vicariously liable for the behaviour of your employees, agents and contractors, unless you can show that you took steps to prevent the behaviour from occurring once you became aware of an issue.

But wait, there’s more …
The obligation now is far greater than just responding to an issue when it is raised with you.

Since December 2022, under the Sex Discrimination Act 1984 (Cth), organisations and businesses have a positive duty to eliminate, as far as possible, unlawful behaviour from occurring including:

• discrimination on the grounds of gender in a work context

• sexual harassment in connection with work

• gender-based harassment in connection with work

• conduct creating a workplace environment that is hostile on the grounds of gender

• related acts of victimisation.

This means there is now a legal obligation on businesses to take proactive and meaningful action to prevent relevant unlawful conduct from occurring in the workplace or in connection to work, rather than just responding after it occurs. This is a shift in focus and thinking that many businesses are yet to make.

A Real Problem

It may surprise you to know that…

Practical Tips for Employers:

In terms of actions required by employers, what is considered ‘reasonable’ will depend on the size and maturity of a business. Suggestions for all businesses (large and small) include:

1. Ensure Prevention policies are developed in consultation with employees

2. Regularly train employees and management in identification and prevention of harassment as well as the details of your policy

3. Have a robust grievance/complaint process in place for individuals wishing to report concerns

4. When concerns/grievances are lodged, follow an appropriate, timely, confidentially, and objective management response

5. Provide employees access to an Employee Assistance Program (EAP)/other support avenues

6. Conduct risk assessments in the workplace relating to sexual harassment

7. Facilitate anonymous employee surveys to gather data on the prevalence and risk of harassment in the workplace

8. Ensure recruitment practices (adverts, shortlisting, interviewing, selection) are free from discrimination

9. Handle instances such as family & domestic violence, requests for flexible working arrangements, and return to work from maternity leave sensitively and appropriately

10. Include this topic in management/board meeting agendas including risks identified, measures implemented, incidents occurring.

Positive Duty = Positive Impact

Rather than seeing this as ‘yet another thing we have to comply with,’ it is helpful to adopt the mindset that this is a way to positively protect and nurture your people.

Our team recently conducted multiple education sessions with teams of leaders at all levels. We know we are having a positive impact when the participants tell us things like