Sexual Assault and Harassment at Work
The risks involved and the 10 steps to respond to a complaint.
There a has been much in the press lately regarding this topic with the Brittany Higgins allegation and the appalling approach to the response, and of course the new allegations against Christian Porter.
This blog is not going to assess these allegations, rather, the goal is to ensure small business owners understand their risks and how to minimize them.
Let’s start with the acknowledgement that the cost of sexual assault and harassment is highest for the victim/s. The mental health and wellbeing of a victim can take years to improve, and from my personal dealings with victims, I can attest that, sometimes they just never improve.
I should preface this blog with the fact that I am a proud White Ribbon Ambassador and a Mental Health Advocate, furthermore; I am a Chartered Fellow of the Institute of Leaders and Managers. I mention the latter, because the Federal Government issues have illustrated strongly that this is a leadership issue as much as it is anything else.
We will discuss the risks and mitigation strategies in this article, but spoiler alert – strong leadership; that is, be what you want to see in your staff will go a long way further than any written policy or procedure.
- 17% of women and 4.3% of men in Australia have experienced sexual violence (sexual assault or threats).
- 25% of women and 6.5% of men with disability have experienced sexual violence.
- 16% of women have experienced sexual violence from a male they know.
- In 2019 there were 26,892 victims of sexual assault in Australia (up 2% on 2018), 83% were female.
“Sexual harassment is really not about sex. It’s about power and aggression and manipulation. It’s an abuse of power problem,” James Campbell Quick, PhD, a professor of leadership and management at the University of Texas at Arlington.
So, what do you think acceptable behaviour is? Respectful interactions, inclusiveness and so forth? What if I told you, you are wrong, it is none of these things! Acceptable behaviour in your workplace is simply the behaviours that you have been accepting, so if inappropriate comments and behaviours are going unchecked, then this is perfectly acceptable in your workplace.
It isn’t easy being consistent in this area, yet it is actually the simplest process there is. Standing strong against a group who believe “it’s just a bit of banter” and that “you just need to lighten up” can become tiring.
I know from personal experience; I was once called into an organization because a report indicated that their female turnover was over three times that of their male counterparts, so they wanted me to investigate.
I met with the GM and Senior Manager of the most affected area to discuss and within 10 minutes a clue became visible to me: One of these men stated that they “just don’t understand why these bitches keep leaving”. Only a breadcrumb to indicate the cause, but it was there! I wandered around with these executives and they openly discussed the physiques of their female employees within earshot of the employees, and with the male employees in the area. One of the female employees was a 17-year-old girl.
When we got back to their office, I noted some photos on the desk and asked who they were of, a proud “my daughters” was the answer. So, I quickly asked the other executive if he thought “they’d go alright or not”. You can imagine the response.
I noted to these men that all I was doing was joining in on their ‘banter’ from earlier. I also stated that the fact that the women out there were someone’s daughter, wife, mother, sister, etc. meant nothing. What mattered was they were people, they have feelings, hopes, dreams, lives and like every single one of us, reasonable fragile mental health.
- It took over 18 months to get that organization right, but we did move from this sort of behaviour to being nominated for an EEOW award in that time.
First things first.
I tell the above story, because I want every reader to remember the fact that we are dealing with people here, and the one thing I know about every adult on the planet is very simple – we are just giant toddlers with vastly more complex emotions (extended from hungry, tired, poopy, sore/unwell, bored, although some might say not too far extended!).
When we start talking of the risk to your organization/s and the steps you can take to mitigate those risks, it is quite important to keep the fact we are dealing with people and their wellbeing first and foremost in your head. If you want to remain selfish about it, then remember the biggest costs to business are:
- Presenteeism/loss of productivity (where people attend work, but aren’t productive) which can be both the victim and the accused,
- Increase staff turnover,
- The cost (opportunity cost) of staff time investigating the claims,
- Medical expenses,
- Potential legal costs, including compensation claims.
As the employer you have two main areas of risk:
This is where the employer is held responsible for the behaviours and acts committed by their employees. The Sexual Discrimination Act states that an employer or principal, including a union, is liable for acts of sexual harassment committed by employees or agents in connections with their duties unless ‘all reasonable steps’ were taken to prevent the event from occurring. This is more than just having the correct policies and procedures in place (which we will discuss shortly), remember what we noted in acceptable behaviour (above)?
There are two main actions that employers must take to avoid liability for sexual harassment:
- Take all reasonable steps to prevent sexual harassment from occurring. An employer should have a sexual harassment policy, implement it completely and monitor its effectiveness.
- If an event does occur, an employer should have appropriate procedures for swiftly dealing with complaints immediately they are made.
Individuals and employers can also be held liable under section 105 of the Sex Discrimination Act if they ‘caused, instructed, induced, aided or permitted’ an individual to commit an unlawful act. For example, if you (or your staff) are aware that an employee is being sexually harassed nothing is done, you may be held liable as an accessory to the harassment. There is no defense available for this type of liability.
There is no exemption for small business within the Sex Discrimination Act and the behaviour, unlike bullying, does not need to be repeated or continuous.
Writing a Sexual Assault and Harassment Policy
I am not a big believer in using templated versions for this sort of policy, the risks associated with getting it wrong are too great. However, there are certain elements that we always include in the policies we write:
- A clear definition of sexual assault and sexual harassment,
- Examples that are relevant to the specific working environment, and circumstances in which they may occur,
- What sexual assault and sexual harassment are not,
- A statement that these behaviours are illegal,
- Consequences that can be imposed if the policy is breached,
- Responsibilities of management and staff,
- Information on where individuals can make a complaint and/or gain advice and/or seek help,
- A summary of the options available for dealing with sexual harassment or assault.
The 10 steps to take to respond to sexually related complaints.
- Inform the CEO/MD, etc.,
- Seek legal advice,
- Treat the complainant with the utmost of respect,
- Investigate the claim promptly and thoroughly (follow your own policies and procedures – don’t have them? Get them!),
- Treat the accused with the utmost of respect,
- Take appropriate action,
- Where applicable; cooperate with any law enforcement agencies,
- Ensure the complainant and Accused are not vilified,
- Be careful with your texts and emails, and preserve your documents – professional language, no assumptions and refer to policies and procedures. The shock of a complaint may create unconsidered responses that later turn up in discovery, and even if well intended, can cause issues,
- Assess the damage and consider your media strategy – just in case.
A quick reminder.
- Each individual has the right to accept or refuse sexual contact at his or her discretion; and no one deserves to be sexually assaulted.
- Each sex has equal ability to control their sexual behavior and that they are ultimately responsible for their own actions. (The survivor is not responsible for the assailant’s actions.)
- Sexual assault is a violent crime and is often premeditated.
- Each survivor of sexual assault is a separate individual having distinct and separate needs and should be treated accordingly. There is no uniformly accepted “normal” reaction to sexual assault.
Remember, YOU ARE NOT TO BLAME, even if:
- Your attacker was an acquaintance, date, friend or spouse, girlfriend or boyfriend, parent, sibling, guardian, other relative, professor, coach, or even employer.
- You have been sexually intimate with that person or with others before.
- You were drinking or using drugs.
- You froze and did not or could not say “no” or were unable to fight back physically.
- You were wearing clothes that others may see as seductive.
- You said “yes” but later said “no” and were not listened to.
Unwelcome conduct of a sexual nature:
- Aleksovski v Australia Asia Aerospace Pty Ltd  FMCA 81, and
- Djokic v Sinclair (1994) EOC 92-643
- Horman v Distribution Group Limited  FMCA 52
- Smith v Hehir and Financial Advisors Aust Pty Ltd  QADT 11
Sexually hostile work environments:
- Horne v Press Clough Joint Venture (1994) EOC 92-556; (1994) EOC 92-591
- Leslie v Graham  FCA 32
Example of business owner being held liable for behaviours of clients/patrons:
Smith v Sandalwood Motel (1994) EOC 92-57
Example of accessory liability:
Elliott v Nanda & the Commonwealth (2001) 111 FCR 240
Sexual Harassment: Have We Made Any Progress? (spoiler alert, NO!)
What Works? Preventing & Responding to Sexual Harassment in the Workplace
Deloitte: The economic costs of sexual harassment in the workplace Final report 2019
Safe Work Australia