Respect@Work: why responding to sexual harassment is everyone’s business

Workplace culture is undergoing a major change, driven by movements such as #MeToo, #TimesUp and #LetHerSpeak. These empowered calls to equality have become part of everyday language. In 2017, TIME Magazine named as its Person of the Year the ‘Silence Breakers’, representing the people who came forward and spoke up about sexual harassment and assault throughout the #MeToo movement. Around the world, people are speaking up about their experiences of sexual assault and harassment. Importantly, they have compelled governments, businesses and leaders to do more to create safe and fair workplaces.

This is certainly the case in Australia. A series of inquiries, increased media coverage and high-profile incidents have shone the spotlight on the issue and prompted renewed calls for sexual harassment in the workplace to be eradicated. Now faced with new laws which will significantly change the landscape, business has an opportunity to view sexual harassment through a different lens.

Snapshot of Respect@Work

Against this backdrop of heightened awareness, a national inquiry commenced in 2018 to assess the impact of sexual harassment and its prevalence in Australian workplaces. This culminated in the landmark Respect@Work report, which was published in March 2020.

The report made 55 recommendations which traversed legal, regulatory, social and economic issues. One of the most significant is the introduction of a positive duty on employers to prevent workplace sexual harassment, discrimination and victimisation. Meeting this new benchmark will require a mindset reset from businesses and business leaders.

The federal government has taken steps to implement this recommendation, with the Respect@Work bill containing the positive duty (among other reforms) recently passing Parliament.  If you’re interested in understanding more about these changes, you can access our alert here.  

Sophisticated and nuanced solutions needed

Increasingly, business leaders are recognising that this complex problem can’t be solved through policies, frameworks and procedures alone. As reported in the AFR, Matt Comyn, Chief Executive of the Commonwealth Bank, recently told an online forum convened by gender equality advocacy group Champions of Change Coalition that the problem required “sophisticated and nuanced solutions”.

The introduction of the positive duty presents a timely opportunity for organisations to reassess their usual approach and existing practices. It is now imperative to ensure measures are targeted at prevention, not just reaction. Consistent with Mr Comyn’s observations, employers need to recognise that properly addressing the issue of sexual harassment and creating a positive workplace culture requires a holistic approach. 

Listen up

While sexual harassment impacts all industries, it affects each industry and workplace differently. Businesses should take the time to identify and understand the risk factors that exist in their organisation and tailor their approach accordingly. 

This includes appreciating that within a single company, diverse workforces and workplaces may present different risks and issues (compare, for example, the environment of a remote mine site versus the corporate head office). Employers need to consider what a safe and fair workplace looks like to employees across all levels and a key part of this is listening to the employees who work there day to day; how comfortable do they feel with existing reporting avenues and does the culture and encourage and protect those who speak up? It is one thing to have a policy and reporting framework, but if the culture within the organisation does not support and protect those who speak up, those documents will be of little benefit.

Trauma-informed practices

Experts advise that feeling heard is an important part of a victim’s experience throughout the complaint process. Gone are the days when protecting the reputation of the organisation and its leaders can be the primary guiding philosophy when dealing with a complaint.  It is well recognised that a company’s reporting and investigation processes can further traumatise victims of sexual assault and harassment. 

With this in mind, business should consider the following ways to facilitate reporting and complaints handling processes:

• Acknowledging the important role of the bystander in the workplace – through implementing appropriate training and resources to support these people to speak up about instances of sexual harassment.
• Establishing reporting mechanisms that are fit for purpose, allow for anonymous disclosures and provide alternative forums to make a complaint.
• Ensuring there are trained and dedicated staff across all levels of the organisation who can be approached to raise a concern.

This approach recognises that people may not always be comfortable reporting incidents of sexual harassment and assault through existing communication channels, for example purely through a human resources function, and that a hybrid approach that offers a number of reporting mechanisms may be required.

The value of speaking up when sexual harassment is witnessed was demonstrated in the latest statistics released by the AHRC. The national survey on sexual harassment in Australian workplaces found that in the last five years, 61% of people who took action after witnessing or hearing about workplace sexual harassment said that the harassment stopped as a result. ^[2]

Proactive, not reactive

Creating a positive workplace culture requires businesses to take ongoing and proactive measures, particularly with the proposed introduction of the positive duty.

An appropriate response to sexual harassment in the workplace requires proper investment in training and educating the workforce. The level of emotional intelligence and understanding that employees have of the behaviours that constitute sexual harassment will vary across organisations. Employers should refocus their attention away from seeing their role in responding to this issue as a ‘check box’ exercise. Rather, they should take continued steps at regular intervals to adapt to the latest changes and ways of thinking.

Everyone in the organisation has a role to play

The responsibility for ensuring a company culture that stops sexual harassment starts with the board and executive team. If intervention and prevention is not a leadership priority, it is difficult to see how meaningful change can occur. This is a strong theme being identified in the research in this area and by businesses in their culture reviews.

However, taking steps to establish a positive workplace culture requires more than just action by the board or most senior members of the organisation. The message must permeate from the senior leadership of an organisation through to all levels of management. Middle management and team leaders must buy-in to the cultural change and recognise, and take responsibility for, their duty to role model the right behaviours.

Ultimately, each individual employee must reflect on how their behaviours, whether action or inaction, could contribute to a culture in which sexual harassment can be present.

Old habits die hard

The traditional approach to dealing with sexual harassment tended to be reactive and often focussed mainly on protecting the reputation of the company and its senior leadership. To that end, for those responsible for resolving a sexual harassment complaint, obtaining the complainant’s agreement to strict confidentiality terms was frequently seen as a key outcome.

Developments both here and overseas have brought about much reflection on the use of confidentiality terms or non-disclosure agreements (NDAs). The criticism is that they operate to protect the reputation of the business and the accused harasser, and by keeping complaints under wraps they contribute to a culture of silence. With the anticipated development of ‘best practice’ guidelines from the Respect@Work Council and the foreshadowed legislation to be developed in Victoria which will restrict the use of NDAs, change is coming.  Aside from legal reforms, the use of NDAs are becoming part of a wider discussion about transparency. For many organisations, particularly those with a significant public profile and for listed companies, careful consideration needs to be given to the appropriateness of NDAs on a case-by-case basis. 

Another common conundrum faced by business is the ‘informal’ complaint where the victim is emphatic that they do not want a ‘formal’ investigation.  In our view, it will be increasingly difficult to conceive of situations in which an allegation of sexual harassment can be ignored because the victim does not wish the company to investigate. Organisations will need to give close consideration to how they will respond to these types of complaints, and equip their employees with the tools to ensure that reports of this nature are handled with sensitivity. 

While the legal reforms introduce a new compliance burden for business, this should not cloud the significance of these changes as an opportunity to identify and address workplace culture issues that enable sexual harassment to occur before they cause damage to an organisation and its people. It is a duty which deserves to be embraced.

For more insights on Respect@Work, click here.