Flirting, harassment and essence of the consent: Sexual harassment in the workplace
By Thomas Parer and Alex Millman
Despite legal protections against sexual harassment existing for some time, it remains an ever present issue in the workplace.
The commonality of sexual harassment may be because what constitutes “sexual harassment” is broader than what most likely comes to mind when individuals consider the expression.
Inappropriate physical contact is one of the more obvious examples, but a wide range of conduct can be captured by the legal definition of sexual harassment. Some of the most common forms of sexual harassment are sexually suggestive comments or jokes, or inappropriate questioning.
“Sexual harassment” is defined in similar terms under both State and Federal anti-discrimination law, primarily as being behaviour that is:
- of a sexual nature; and
- such that a reasonable person would anticipate in the circumstances that the person who was harassed would be offended, humiliated and/or intimidated
The legal test for whether specific behaviour constitutes harassment is a mix of subjective and objective, in that the behaviour must be subjectively “unwelcome” and objectively “offensive, humiliating or intimidating”.
The subjective issue of consent means that the exact same conduct may or may not constitute sexual harassment under the law, depending on whether the victim consented. It does not, however, make that conduct acceptable under workplace policies dealing with employee behaviour.
Although the expression “harassment” might from some perspectives require a there to be multiple incidents, the law is clear that a single act of sexual harassment is a contravention of the relevant anti-discrimination legislation.
It’s important for employers to understand sexual harassment; not just because it is a matter that negatively affects their workforce, but also because employers can be held to be vicariously liable for harassment occurring in their workplaces.
As sexual harassment disproportionately affects women and young people, and these demographics dominate the retail workforce, businesses in the retail industry ought to be particularly vigilant.
What should employers do?
Where an employee engages in sexual harassment in the course of work, their employer can be held vicariously liable for that behaviour.
This results in the majority of harassment cases arising in the employment context being brought against both the employee who engaged in that conduct, and their employer, not least because employers typically have deeper pockets than individual employees.
However, employers can defend themselves against such a claim if they can prove that they took reasonable steps to prevent their employee engaging in the offending conduct.
This means that taking preventative steps against sexual harassment is not just good culture and common decency, but also an important means of mitigating a business’s legal risk.
One of the most fundamental and often overlooked preventative measures is in setting and enforcing a workplace policy that prohibits sexual harassment.
Such a policy should clearly set out:
- what sexual harassment is, potentially with the aid of examples;
- that sexual harassment will not be accepted in the workplace; and
- how complaints of sexual harassment will be dealt with.
However, simply having such a policy is not enough to allow an employer to show that they have taken reasonable steps to protect their workers from sexual harassment. An employer will need to show that this policy was not merely gathering cobwebs on a shelf, but that it was proactively promulgated to their workers. This may involve:
- delivering regular training on the sexual harassment policy for all employees;
- providing a copy of the policy as part of the induction process for new employees;
- making copies of the policy made available on the staff notice board and Intranet; and
- making sure that the policy is discussed verbally with employees in a manner that they understand.
Depending on the demographic of your workforce, you may need to consider providing the policy in languages other than English or in a format that provides the information in a graphic rather than textual format.
However, despite all of these precautionary measures, sexual harassment may still occur in your workplace. Accordingly, employers will need to ensure their employees, and they themselves, have a clear idea of how the complaints of harassment will be handled.
Any sexual harassment policy ought to include a process by which complaints of sexually harassing conduct can be made, including an assurance that these complaints will be treated confidentially.
The framework for handling sexual harassment complaints may in fact be the same or similar to a policy for handling complaints or grievances more generally, but may need to be tailored to address the sensitive nature of a harassment complaint. Ideally, in a larger business, the complaint should be handled by a designated member of staff who has been received training in handling such a complaint.
Once a complaint has been received, an employer should ensure that they treat the complaint with care and ensure they perform a procedurally fair investigation, in accordance with principles of natural justice. Complaints of harassment may be difficult to investigate however, as often the incidents that occur will occur in private with only the alleged perpetrator and victim present.
Even where there is not adequate evidence to support a finding of harassment, the conduct may still have occurred, and so employers may still wish to engage in counselling, training, and/or continue to monitor the situation between the employees.
A common issue that arise in matters of sexual harassment is that a victim makes a complaint but does not wish the business to do anything about the conduct. This can be a difficult situation for a business, as harassment can pose a health and safety risk that needs to be properly managed.
This dichotomy may need to be resolved by a frank conversation with the complainant about what the business can and cannot do, and whether the complainant has provided sufficient information to allow the matter to be monitored in a less overt fashion.
What about customers engaging in sexual harassment?
Unfortunately, your employees may also be subject to harassment from your customers. The disadvantage here is that there are more limited options for an employer to address this conduct. However, employers should note that they have a duty of care to ensure the health and safety of their staff and provide a safe work environment.
Accordingly, where an employee suffered physical or psychological injury as a result of harassment by a customer, an employer may be liable for under workers’ compensation and common law for damages arising out of that injury.
This means that employers should also have preventative and remedial measures in place to support employees.
Such measures could include, but are not limited to:
- asking employees to notify their manage if they feel unsafe in dealing with a particular customer;
- minimising risk factors within the control of the business, such as not requiring workers to wear items of clothing which may be sexually suggestive;
- banning customers who engage in sexual harassment from entering the store in future.
Where to from here?
Sexual harassment can be a difficult issue to identify and to manage. If you require assistance in drafting a policy for your workplace, or are dealing with a complaint, contact the NRA Workplace Relations team on 1800 RETAIL (738 245) for further assistance.
See also the SDA National Workplace Sexual Harassment Survey for statistics on harassment against women in retail.