As we discussed in our two previous posts, employers, large and small, in Australia must now contend with an entirely new set of legal obligations when trying to render their workplaces free of sexual harassment.
Firstly, the principal duty falls squarely on the employer who must act proactively and systematically to take steps to prevent sexual harassment from occurring; secondly, sexual harassment and its consequences are now unequivocally a workplace health issue and must be dealt with like other risks to the health and well-being of employees.
Under the Federal Laws as they stood before the change, employers could be ‘vicariously liable’ for acts of sexual harassment in the workplace unless they could show that they had taken all reasonable steps to prevent it. Employers, mostly, took a defensive posture vis-a-vis sexual harassment and the steps they put in place usually involved: policies spelling out severe penalties for sexual harassers, mandatory training on sexual harassment, clearly defined grievance procedures and explicit warnings prior to breakaways and around workplace parties.
Some commentators have suggested that to comply with the new regime, the same types of interventions should be followed- but they just need to be more rigorously applied.
Well, this recommendation is appropriate if all you are after is to make sure you are compliant. Most of these methodologies which have been relied upon in the past simply do not work and, in fact, have been designed mainly to provide the organisation with a defence in the event of legal proceedings rather than to instal effective preventative measures. The Respect@Work report highlights that culture and climate are the critical factors which either promote or retard occurrences of sexual harassment. The legislation which followed it should be interpreted against this background. As a consequence, the AHRC website encompasses a number of valuable tools and practical tips to help to navigate the new principles, emphasising that creating the right culture in indispensable for the framework to be successful.
That the traditional methodologies employed by Australian organisations do not work and, in fact, may even result in an increase of sexual harassment, is supported by a healthy body of empirical research and institutional assessment of these programs in the USA and elsewhere. Solid data supports this proposition (Dobbin and Kalev 2020; Zelin and Magley 2022; AHRC Respect@Work Council).
Naturally, the best strategy to combat sexual harassment may vary in different industries and different organisations but the core elements will be common to all.
The 2018 survey by NASEM (National Academies of Science, Engineering and Medicine) over two years and involving more than 60 institutions of higher education offers many pertinent insights and seven recommendations to address and prevent sexual harassment:
1) treat sexual harassment as a form of gender discrimination;
2) move beyond compliance to address culture and climate;
3) create diverse, inclusive, and respectful environments;
4) improve transparency and accountability;
5) diffuse the hierarchies existing in organisations
;6) provide support for victims;
7) strive for strong and diverse leadership
The critical foundational principle emphasised by NASEM is: ‘Attending to an organisation’s climate is crucial to preventing and addressing harassment because organisational climate is the greatest predictor of sexual harassment. ‘
This is in strong alignment with Symmetra’s view, that the new paradigm on sexual harassment requires consistent and transparent leadership, commitment unequivocally to the principles of diversity, equity and inclusion and the fullest recognition that dealing with sexual harassment is part and parcel of the totality of ensuring the health and wellbeing of everyone in the organisation. If you wish to go beyond compliance and embark on a path to a more inclusive workplace culture and one where the prospects of sexual harassment occurring are less likely, contact us https://bit.ly/3n6HKcm