09 May Report finds that employees who believe common sexual harassment myths are more likely to use digital technology to sexually harass their colleagues

In the recent Workplace technology-facilitated sexual harassment: Perpetration, responses and prevention report commissioned by Australia’s National Research Organisation for Women’s Safety (“Report”), it was found that employees who believe common sexual harassment myths are more likely to use digital technology to sexually harass their colleagues.

What is sexual harassment?

Under section 28A of the Sex Discrimination Act 1984 (Cth) (“Sex Discrimination Act”), a person sexually harasses another if:

• they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person who is being harassed; or

• they engage in other unwelcome conduct of a sexual nature in relation to the person harassed,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Sexual harassment does not have to be repeated or continuous.  It can be a one-off incident.  Further, when ascertaining whether certain conduct is sexual harassment, the intention of the alleged harasser does not matter.  Rather, what is relevant is whether it would be reasonable to expect that there is a possibility that the person being harassed would be offended, humiliated or intimidated by the behaviour.

The Report Findings

The Report related specifically to “workplace technology-facilitated sexual harassment” (“WTFSH”).  WTFSH was defined to mean conduct involving “unwelcome and/or threatening sexual conduct using mobile, online and other digital technologies in a workplace context”.

The Report found that, in the survey of more than 3000 workers, those who indicated that they strongly supported “sexual harassment myths” such as “most women secretly enjoy it when men ‘come on’ to them at work” and “sometimes a woman has a ‘fantasy’ relationship with her boss and then claims that he sexually harassed her” were almost 16 times more likely to report they had engaged in WTFSH than those with “low endorsement” of such views.

Those who strongly supported statements such as “many women mistakenly interpret innocent remarks or acts as being sexist” and “in the workplace, men generally make more capable bosses than women” were five times more likely to report they had engaged in WTFSH.

What are your obligations as an employer

There are various pieces of legislation that affect an employer’s obligations regarding sexual and sex-based harassment in the workplace.  These include:

• Fair Work Act 2009 (Cth) (“Fair Work Act”);

• Sex Discrimination Act; and

• Work health and safety legislation such as the Work Health and Safety Act 2011 (Qld) and the Managing the risk of psychosocial hazards at work Code of Practice 2022 (“the Code”).

Notably, under section 527D of the Fair Work Act, sexual harassment in connection with work is prohibited.  This includes in the workplace, as well as work-related activities such as training courses, work-related conferences, work trips, social activities related to work and over social media.  Importantly, pursuant to section 527E of the Fair Work Act, a person or company may be held liable for sexual harassment committed by an employee or agent in connection with work, including if they were involved in the contravention.  This section applies unless the person or company can prove that they took all reasonable steps to prevent the sexual harassment.

Further, under section 47B of the Sex Discrimination Act, there is a positive duty on all employers and Persons Conducting a Business or Undertaking (“PCBUs”) to take “reasonable and proportionate measures” to eliminate unlawful sex discrimination, including:

• workplace sexual harassment, sex discrimination and sex-based harassment;

• conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex; and

• certain acts of victimisation.

In considering whether a duty holder has taken “reasonable and proportionate” measures, matters such as the size, nature, and resources of the duty holder’s business or undertaking, as well as the practicability and cost of eliminating the conduct, are taken into account.

How can you keep on top of your obligations?

It is imperative for employers to not only be aware of their legal obligations but also to actively implement measures to prevent sexual harassment and discrimination in the workplace. Failure to do so can result in significant legal and financial implications for the business, or those personally involved in the contraventions. To ensure compliance, employers should take proactive steps to effectively address sexual harassment in the workplace, including WTFSH.

This includes:

• Developing Comprehensive Policies: Employers should have clear, comprehensive policies in place that explicitly prohibit all forms of sexual harassment, including WTFSH.

• Educating Employees: Educating employees on appropriate workplace behaviour is essential.  Conduct regular training sessions to educate employees about sexual harassment, including WTFSH.  Ensure that all employees understand what behaviours are unacceptable and the consequences for engaging in them. Training should also cover common myths and misconceptions about sexual harassment to dismiss any misunderstandings.

• Creating a Respectful Workplace Culture: Foster a workplace culture that promotes respect, equality, and diversity.  Lead by example and ensure that managers and supervisors actively promote and uphold these values in their interactions with employees.

• Promoting Reporting Mechanisms: Establish confidential and accessible reporting mechanisms for employees to report incidents of sexual harassment.  Employees should feel comfortable coming forward with their concerns, knowing that they will be taken seriously and that appropriate action will be taken.

• Investigating and Addressing Complaints Promptly: Take all reports of sexual harassment seriously and conduct prompt and thorough investigations.  Address complaints promptly and take appropriate disciplinary action against perpetrators.

By taking these proactive measures, employers can create a safe workplace environment for employees, whilst ensuring they comply with their obligations at law.  Need assistance? Contact the HR Law team today.

What we might see in light of the Report

In 2020, the Respect@Work Report was published which found that sexual harassment is a prevalent issue in the workplace.  This Respect@Work Report outlined 55 recommendations to eliminate workplace sexual harassment.  Whilst the Australian Government has almost completed the implementation of all 55 recommendations, the Report may put pressure on the Government to work on implementing the remaining recommendations as a priority. 

HR Law will keep you updated.

Resources

• To access the Report, click here.

• To access the Sex Discrimination Act, click here.

• To access the Fair Work Act, click here.

The contents of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.