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Working Without Fear: Workplace Sexual Harassment in 2012

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 http://www.herbertsmithfreehills.com/insights/legal-briefings/working-without-fear-workplace-sexual-harassment-in-2012

Summary

  • Workplace sexual harassment damages workplace morale and can significantly affect performance and productivity in your organisation.
  • The results of the 2012 survey show that sexual harassment is prevalent in Australian workplaces, male co-workers are most likely to be the perpetrators of harassment, and targets of harassment are less likely to report or complain about sexual harassment.
  • Despite legislative enactments, including changes to the Sex Discrimination Act 1984 (Cth) in 2011 to enhance safeguards around sexual harassment, levels of workplace sexual harassment have not fallen by any real or significant extent.
  • To create workplaces that are safe, secure and free from all forms of sexual harassment, a holistic approach is needed involving leadership and commitment from the government, unions and employers across all industry sectors.
  • Employers need to consider new and innovative ways of addressing workplace sexual harassment, including effective prevention strategies, educating and training employees at all levels, improving access to reporting mechanisms and encouraging reporting of sexual harassment.

In late October 2012, the Australian Human Rights Commission released its third report on workplace sexual harassment entitled Working Without Fear: Results of the 2012 Sexual Harassment National Telephone Survey. The Commission considered the prevalence, nature and reporting of sexual harassment in Australian workplaces since the survey was last conducted in 20081 and made several key findings on these issues based on the data obtained.

Sexual harassment remains prevalent in Australian workplaces

Sexual harassment remains a ‘persistent and pervasive problem’ in Australian workplaces – 21% of people over 15 years old have experienced sexual harassment in the workplace in the last 5 years, compared to 20% for the preceding 5 year period. This may indicate that no real progress has been made in reducing the prevalence of workplace sexual harassment, or it may indicate increased willingness to report harassment.

In addition, it appears that many workers do not understand what ‘sexual harassment’ is – almost one in five (18%) respondents to the survey stated they had not been sexually harassed (based on the legal definition) but indicated they had been exposed to behaviours likely to be unlawful sexual harassment.

Notably, whilst sexual harassment is recognised as a particular challenge for women in paid work, an increasing number of men (16%) have experienced workplace sexual harassment over the past 5 years.

Nature and character of workplace sexual harassment

Sexual comments, questions and inappropriate staring or leering are most common

Sexual harassment can take various forms of physical and non-physical behaviours and occur in different ways (eg in person or via social media). The most common types of behaviour reported were sexually suggestive comments or offensive jokes (55%), intrusive questions about the target’s private life or appearance (50%) or inappropriate staring or leering (31%).

Interestingly, reports of sexually explicit emails and text messages have fallen since 2008 (from 22% to 17% of respondents). This suggests that employers may be benefiting from setting up and enforcing policies about appropriate computer and email use. It may also show that workers have better understanding that emails and texts are traceable and may be used against them in complaints or reports.

Many harassers are repeat offenders

Almost half the respondents (45%) who were targets of sexual harassment knew that someone else had been harassed in their workplace. Of those respondents, an overwhelming majority (82%) stated the person who harassed them had also harassed others in the workplace.

These figures suggest that dealing with complaints about harassers decisively and effectively may prevent or reduce the likelihood of others being harassed. Failure to do so however, may lead to further sexual harassment in the workplace.

Most workplace sexual harassment goes unreported

Despite the widespread nature of workplace sexual harassment, the figures show that only a small proportion of respondents take some form of action:

  • 20% of respondents made formal reports or complaints, and
  • 29% of respondents sought support or advice.

The unpreparedness of targets to report sexual harassment generally and their reliance on internal complaints processes when they do make complaints means that employers must proactively engage in prevention and management of sexual harassment issues in the workplace.

Reporting sexual harassment leads to positive outcomes

Almost half of respondents (45%) stated that sexual harassment stopped after they made a formal report or complaint and 74% of those respondents were ‘satisfied’ or ‘extremely satisfied’ with how their report or complaint was handled.

Most complaints were finalised in less than a month (78%) indicating that internal processes may be an efficient and effective means of addressing sexual harassment in the workplace. Importantly, only 3% of complaints took more than 12 months to be finalised.

Negative consequences may be preventing people from reporting harassment

There may be a link between the low levels of reporting and the increase in the proportion of persons who suffered for making a report or complaint. Almost one in three (29%) respondents stated they experienced negative consequences such as relocation, shift changes, resignation, dismissal, demotion, disciplinary action, victimisation or ostracism by colleagues. This compares with 22% in 2008, which shows that more people are experiencing (or at least perceiving that they are experiencing) negative outcomes from reporting sexual harassment.

Further, the majority of respondents who were sexually harassed did not seek support or advice, usually because:

  • they dealt with the situation separately, either by telling the harasser to stop the harassment or that the behaviour was inappropriate, or
  • they perceived the behaviour was not serious enough.

Targets who did seek support or advice commonly sought out their managers or supervisors (42%), co-workers (18%), or their employer or ‘boss’ (16%).

Implications for employers

Where sexual harassment exists in the workplace, employers are exposed to significant costs in lower levels of productivity, reduced worker morale and retention rates, absenteeism, employee claims and reputational damage.

Whilst employers have taken considerable steps to address workplace sexual harassment, more needs to be done to engage with employees to change workplace culture and facilitate real and meaningful progress in this area.

Specifically, employers will need to develop and implement strategies which seek to eliminate sexual harassment in the workplace by:

  • recognising the prevalence of workplace sexual harassment and the groups of employees who are most vulnerable and most likely to engage in such behaviour,
  • educating and regularly training workers about sexual harassment (including same-sex harassment) and their rights and responsibilities in the workplace,
  • having a well-known and robust process in place to deal with complaints and instil confidence in workers that complaints will be appropriately addressed,
  • encouraging workers to report sexual harassment and empowering bystanders who witness or hear about sexual harassment to take action,
  • protecting workers and bystanders who take appropriate action against sexual harassment from negative consequences, and
  • equipping relevant persons with the knowledge and skills to effectively deal with sexual harassment issues, either by way of managing complaints or providing support and advice.

This article was written by Jane Wright, Senior Associate, Lauren Barel, Senior Associate, and Susan Duc, Solicitor, Sydney.

Endnotes

  1. Australian Human Rights Commission, Sexual Harassment: Serious Business; Results of the 2008 Sexual Harassment National Telephone Survey (2008)
  2. The report Working without Fear: Results of the 2012 Sexual Harassment National Telephone Survey is available from the Australian Human Rights Commission website.

More information

For information regarding possible implications for your business, contact a member of the Employment, Pensions and Incentives team.

Legal notice

The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.

Herbert Smith Freehills LLP and its subsidiaries and Herbert Smith Freehills, an Australian Partnership, are separate member firms of the international legal practice known as Herbert Smith Freehills.

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