Chapter 6: Preventing sexual harassment: All reasonable steps - Effectively preventing and responding to sexual harassment: A Code of Practice for Employers (2008)

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Effectively preventing and responding to sexual harassment: A Code of
Practice for Employers

Chapter 6: Preventing sexual
harassment: All reasonable steps

Key points
6.1 What steps should employers take to reduce vicarious liability?
6.2 How can employers prevent sexual harassment?
6.3 Five simple steps to prevent sexual harassment

(a) Get high-level management support
(b) Write and implement a sexual harassment policy
(c) Provide regular training and information on sexual harassment to all staff and management
(d) Encourage appropriate conduct by managers
(e) Create a positive workplace environment

6.4 Writing a sexual harassment policy
6.5 Essential elements of a sexual harassment policy
6.6 Remedial measures
6.7 How to remedy sexual harassment

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Key points

Every employer, regardless of size, must take all reasonable steps to
prevent sexual harassment in the workplace to avoid liability. This means that
employers must actively implement precautionary measures to minimise the risk of
sexual harassment occurring and to respond appropriately when harassment does
occur.
Under the Sex Discrimination Act, an employer may be held vicariously liable
for sexual harassment when the employer has not taken all reasonable steps to
prevent sexual harassment in the workplace.
What constitutes all reasonable steps is not defined in the Sex
Discrimination Act and is determined on a case-by-case basis. What is
reasonable for a large corporation may not be reasonable for a small
business. When deciding what level of preventative action is reasonable,
employers should consider the nature of their workplace, including the
following.
- The size and structure of the organisation: large organisations may
  need to organise formal information and training sessions to ensure that all
  employees are aware of and understand the organisation’s sexual harassment
  policy. In a small business, it may be reasonable to provide copies of the
  policy to employees and have an informal discussion with employees to ensure
  they understand the policy.
- Available resources: in a large organisation, it might be
  reasonable that a budget be allocated to sexual harassment training and all
  employees attend the training. In a small business where finances are limited,
  it may not be reasonable to send each employee to sexual harassment training,
  but instead the employer could ask that each employee read the sexual harassment
  policy and fill out a questionnaire designed to ensure that the employee
  understands the policy.
- A history of sexual harassment and gender hostility: employers may
  have to take particularly strong steps to combat harassment in such
  circumstances.
- Any other relevant factor, including geographic isolation of the
  work location, duties which require employees to work in close physical
  proximity or where there are ‘live-in’ arrangements.
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. In order to prevent sexual harassment an employer should have a
  sexual harassment policy, implement it as fully as possible and monitor its
  effectiveness.
- If sexual harassment does occur, take appropriate remedial action.
  In order to remedy sexual harassment an employer should have appropriate
  procedures for swiftly dealing with complaints once they are made.

6.1 What
steps should employers take to reduce vicarious liability?

It is not possible to guarantee employers that they will not be vicariously
liable for sexual harassment, even if they take particular steps to prevent
harassment. This is because liability is decided by courts on a case-by-case
basis. However, the case law does provide some guidance for employers on how
they can meet their legal obligations.

In short, there are two main actions that employers must take to avoid
liability for sexual harassment:

1. Take all reasonable steps to prevent sexual harassment from occurring.

2. If sexual harassment does occur, take appropriate remedial action.

To prevent sexual harassment an employer should have a sexual harassment
policy, implement it as fully as possible and monitor its effectiveness.

In order to remedy sexual harassment an employer should have appropriate
procedures set up for dealing with complaints once they are made.

The next sections give practical advice to employers on how to prevent and
remedy sexual harassment. Small businesses should also refer to Section
8.

6.2 How can employers
prevent sexual harassment?

The key to preventing sexual harassment is for employers and management to
make it clear to every employee and workplace participant that sexual harassment
is unacceptable in the workplace. This can be done by developing a clear sexual
harassment policy, communicating it to each workplace participant and making
sure that it is understood. In addition, it is important that appropriate
behaviour be modelled by management throughout the workplace.

A written policy on its own is insufficient. A policy that is not implemented
through communication, education and enforcement will be of little or no use in
discharging liability.

Below is a checklist on the general steps necessary to prevent sexual
harassment, followed by guidelines specifically on writing a sexual harassment
policy.

6.3 Five simple steps
to prevent sexual harassment

It is recommended that employers take the following steps to prevent sexual
harassment.

(a) Get
high-level management support

Obtain high level support from the chief executive officer and senior
management for implementing a comprehensive strategy to address sexual
harassment.

(b) Write
and implement a sexual harassment policy

Develop a written policy which prohibits sexual harassment in consultation
with staff and relevant unions.
Regularly distribute and promote the policy at all levels of the
organisation. Ensure the policy is easily accessible on the organisation’s
intranet.
Provide the policy and other relevant information on sexual harassment to
new staff as a standard part of induction.
Translate the policy into relevant community languages where required so it
is accessible to employees from culturally and linguistically diverse
backgrounds.
Ensure that the policy is accessible to staff members with a
disability.
Ensure that managers and supervisors discuss and reinforce the policy at
staff meetings. Verbal communication of the policy is particularly important in
workplaces where the literacy of staff may be an issue.
Periodically review the policy to ensure it is operating effectively and
contains up-to-date information.

(c) Provide
regular training and information on sexual harassment to all staff and
management

Conduct regular training sessions for all staff and management on sexual
harassment and the organisational policy. This training should be behaviourally
based which means it should increase knowledge and understanding of specific
behaviours that may amount to sexual harassment under the Sex Discrimination
Act. Regular refresher training is recommended.
Train all line managers on their role in ensuring that the workplace is free
from sexual harassment.
Display anti-sexual harassment posters on notice boards in common work areas
and distribute relevant brochures.

(d) Encourage
appropriate conduct by managers

Line managers should understand the need to model appropriate standards of
professional conduct at all times.
Include accountability mechanisms in position descriptions for
managers.
Ensure that selection criteria for management positions include the
requirement that managers have a demonstrated understanding of and ability to
deal with discrimination and harassment issues as part of their overall
responsibility for human resources.
Check that managers are fulfilling their responsibilities through
performance appraisal schemes.

(e) Create
a positive workplace environment

Remove offensive, sexually explicit or pornographic calendars, literature,
posters and other materials from the workplace.
Develop a policy prohibiting inappropriate use of computer technology, such
as e-mail, screen savers and the internet.
It is recommended that medium and large employers undertake regular audits
to monitor the incidence of sexual harassment in their workplaces and the use
and effectiveness of their complaints procedures.

Workplace example: Internet and e-mail

Use of internet and e-mail has transformed the way that workplaces
communicate, but they can also be used, intentionally or otherwise, as a form of
sexual harassment.

Deliberate harassment using the internet may include downloading offensive
screen savers and loading them onto a colleague’s computer, sending
derogatory e-mails or e-mailing pornographic material.

A particular problem with e-mail is that people tend to think of it as a
private form of communication. Nothing could be further from the truth: once an
e-mail is sent it can be passed on to any number of people, all with the
person’s or organisation’s name attached. The practice, of e-mailing
‘jokes’, offensive material and pornography to workmates, or using
workplace computers to e-mail this material externally, is fraught with problems
since there is no way of guaranteeing that the material will not offend at least
one of its recipients.

In addition, use of the internet and e-mail to access or communicate sexual
material can contribute to a hostile working environment, where employees are
exposed to offensive material in shared offices, on printers or walking past
others’ desks.

Tips for employers

In order to prevent sexual harassment by the internet and e-mail employers
should:

make it clear to employees, through an internet policy that is clearly
communicated to all staff, that inappropriate use of internet and e-mail will
not be tolerated;
direct staff not to forward offensive e-mails from another source; by doing
so they make themselves responsible for the material;
warn employees that e-mail communications are not private: one way of doing
this is to suggest to employees that they not send any e-mail that they would
not be happy to see displayed on a company notice board;
warn employees that evidence of e-mails sent and web sites accessed remains
on a computer system even after they have been deleted by individual users;
and
explain that what is a joke to one person may well be offensive to another
and that sexual or offensive material does not belong in the
workplace.^[30]

6.4 Writing
a sexual harassment policy

A key aspect of prevention is the development and promotion of a written
policy which makes it clear that sexual harassment will not be tolerated under
any circumstances. Some employers incorporate information on sexual harassment
into a general workplace harassment policy which covers other forms of unlawful
harassment (such as harassment on the grounds of race, disability, sexual
preference or age). Others decide there is a need for a stand alone sexual
harassment policy, particularly if sexual harassment is a common or recurring
problem within the workplace. Both options are valid and it is up to employers
to decide what is most appropriate for them. If a general policy is adopted,
however, it is important that the different types of harassment are well-defined
and addressed comprehensively. If the policy is too broad or generic its impact
and clarity may be compromised.

Tips for employers

Officially launch the sexual harassment policy at a full staff meeting.
The chief executive officer or a senior management representative should
endorse the policy and emphasise the fact that all staff are required to comply
with it.
E-mail copies of the policy to employees, put a copy on the intranet and
place an automatic shortcut on employee desktops.
Provide the policy to new staff as a standard part of induction.
Display the policy on notice boards and include it in induction
manuals.
Ask employees to sign a copy of the policy acknowledging they have received
and understood it.
Assign responsibility for the circulation and review of the policy to a
specific position or area to ensure that it is widely promoted and regularly
updated.

6.5 Essential
elements of a sexual harassment policy

A sexual harassment policy should include the following:

A strong opening statement on the organisation’s stance on sexual
harassment

This should state that the organisation is committed to ensuring that the
working environment is free from sexual harassment, that it will not be
tolerated under any circumstances and that swift disciplinary action will be
taken against any employee (or agent) who breaches the policy. To give the
policy credibility and maximum impact, the opening statement should appear above
the signature of the chief executive officer.

An outline of the organisation’s objectives regarding sexual
harassment

This demonstrates that the organisation is committed to a comprehensive
strategy for eliminating sexual harassment. Employers may wish to consider
something along the following lines.

This organisation aims to:

1. Create a working environment which is free from sexual harassment and
where all members of staff are treated with dignity, courtesy and
respect.

2. Implement training and awareness raising strategies to ensure that all
employees know their rights and responsibilities.

3. Provide an effective procedure for complaints based on the principles
of procedural fairness.^[31]

4. Treat all complaints in a sensitive, fair, timely and confidential
manner.

5. Guarantee protection from any victimisation or reprisals.

6. Encourage the reporting of behaviour which breaches the sexual
harassment policy.

7. Promote appropriate standards of conduct at all times.

A clearly worded definition of sexual harassment

There is no single, universally accepted definition of sexual harassment.
However, the definition adopted should be consistent with the legal definition
in the Sex Discrimination Act to avoid any confusion. The most important element
to emphasise in any definition is that sexual harassment is unwelcome behaviour of a sexual nature. For example, sexual harassment can be defined in
the following way.

Sexual harassment is any unwanted, unwelcome or uninvited behaviour of a
sexual nature which makes a person feel humiliated, intimidated or offended.
Sexual harassment can take many different forms and may include physical
contact, verbal comments, jokes, propositions, the display of offensive material
or other behaviour which creates a sexually hostile working environment.

Examples of sexual harassment that may be relevant to the particular
working environment

The policy should identify specific examples of sexual harassment, such
as:

uninvited touching
uninvited kisses or embraces
smutty jokes or comments
making promises or threats in return for sexual favours
displays of sexually graphic material including posters, pinups,
cartoons, graffiti or messages left on notice boards, desks or common areas
repeated invitations to go out after prior refusal
exposing genitals or sexual gestures
insults, taunts, teasing or name-calling of a sexual nature
staring or leering at a person or at parts of their body
unwelcome physical contact such as massaging a person without
invitation, deliberately brushing up against them or forcing a person to perform
sexual acts
touching or fiddling with a person’s clothing including lifting
up skirts or shirts, flicking bra straps, or putting hands in a person’s
pocket
requests for sex
sexually explicit conversation
persistent questions or insinuations about a person’s private
life
offensive phone calls or letters
stalking
offensive e-mail messages or computer screen savers.

What sexual harassment is not

The policy should explain that sexual harassment is not behaviour which is
based on mutual attraction, friendship and respect. If the interaction is
consensual, welcome and reciprocated it is not sexual harassment.

A statement that sexual harassment is against the law

The policy should make it clear that sexual harassment is against the law.
Reference should be made to the federal, state or territory anti-discrimination
laws that apply to the organisation. Staff need to know that legal action could
be taken against them for sexual harassment and that they could also be exposing
the company to liability.

The circumstances in which sexual harassment may occur

The policy should state that sexual harassment is unlawful, even if
perpetrated by a supervisor or manager, co-worker, contractor, service provider,
client or customer. Although not all these situations would necessarily give
rise to a complaint under the legislation, it makes good sense to provide an
internal procedure for dealing with any sexual harassment which could affect the
welfare of employees. The policy should also state that sexual harassment is not
just unlawful during working hours or in the workplace itself and not only
between co-workers. The behaviour is unlawful in any work-related context,
including conferences, work functions, office Christmas parties and business or
field trips and includes interactions with clients and customers. The behaviour
is also unlawful when it occurs away from the workplace but is a culmination or
extension of events in the workplace.

The consequences that can be imposed if the policy is
breached

The policy should operate as a general warning to all employees of the
consequences they can expect if they do not comply. Depending on the severity of
the case, consequences can include an apology, counselling, transfer, dismissal,
demotion or other forms of disciplinary action. Employees should also be
informed that immediate disciplinary action will be taken against anyone who
victimises or retaliates against a person who has complained of sexual
harassment.

Responsibilities of management and staff

The policy should state that the organisation has a legal responsibility to
prevent sexual harassment, otherwise it can be liable for the behaviour of its
employees. This means that managers and supervisors have a responsibility
to:

monitor the working environment to ensure that acceptable standards
of conduct are observed at all times;
model appropriate behaviour themselves;
promote the organisation’s sexual harassment policy within
their work area;
treat all complaints seriously and take immediate action to
investigate and resolve the matter;
refer complaints to another officer if they do not feel that they are
the best person to deal with the case (for example, if there is a conflict of
interest or if the complaint is particularly complex or serious).

All staff have a responsibility to:

comply with the organisation’s sexual harassment policy;
offer support to anyone who is being harassed and let them know where
they can get help and advice (they should not, however, approach the harasser
themselves);
maintain complete confidentiality if they provide information during
the investigation of a complaint. Staff should be warned that spreading gossip
or rumours may expose them to a defamation action or a claim of
victimisation.

Information on where individuals can get help, advice or make a
complaint

The policy should tell employees where they can get help if they are sexually
harassed. Depending on the size of the organisation and the system that is in
place for dealing with sexual harassment, employees can be advised to approach
their manager or supervisor, sexual harassment contact officer, equal employment
opportunity officer, human resources manager, industrial relations manager,
lawyer and/or their union delegate. Where possible a number of different contact
people of both sexes should be provided so that staff can approach someone they
feel comfortable with. It is not appropriate to only give staff the option of
approaching their line manager because there may be cases where the manager is
the alleged harasser or is perceived to be closely associated with the harasser
and therefore not impartial. Where available, employers should offer referrals
to employee assistance programs. Employers should also offer referrals to
external services where employees can get legal advice and emotional support if
they experience sexual harassment.

A brief summary of the options available for dealing with sexual
harassment

Employees should be advised of the different ways that sexual harassment can
be addressed. This includes informal action such as confronting the harasser
directly (but only if the individual feels confident enough to do so), making a
formal complaint to a manager or using the organisation’s internal
complaints procedures. The way that complaints will be handled should be
documented in the policy or in a separate complaints procedure. Staff can be
referred to this if they require more information. Employees can also approach
their union, the Commission or the relevant state or territory
anti-discrimination agency for information and confidential advice.

Case example: Employees in remote locations

Where employees are located in remote areas employers will need to be
particularly careful that they have been made aware of sexual harassment
policies and have access to any complaints procedures.

In one case, the respondent company had distributed a sexual harassment
policy to staff that included details of sexual harassment contact officers.
However, the policy was not explained to staff in any way and it was difficult,
in practice, to make a complaint. Both of the contact officers listed were based
in the head office, while the alleged harassment took place in a regional
office. A complaint would have to be made by telephone during office hours when
the complainant did not have the privacy to make such a call. The company was
found to be liable for the sexual harassment of one of their employees by
another.

Shiels v James and Lipman Pty Limited [2000] FMCA 2

6.6 Remedial
measures

Even with the most effective and fully implemented sexual harassment policy,
harassment can still occur. Employers need to know in advance how they
will approach a complaint of sexual harassment in their workplace, and have
procedures in place to deal with the harassment.

6.7 How to remedy
sexual harassment

It is recommended that employers take the following steps to deal with sexual
harassment when it happens.

Implement an internal system for dealing with sexual harassment complaints
or adapt existing complaints procedures for this purpose. More information on
setting up a complaints procedure is at Section 7.
Ensure that the organisation’s policy on harassment provides employees
with advice on what to do if they are sexually harassed. Confidentiality should
be assured and employers should emphasise that employees who make a complaint
will not be victimised. Employees should be given information on:
- how to deal with the harassment themselves (employees should not be
  pressured into pursuing this option and should only confront the harasser
  directly if they feel confident enough to do so);
- speaking to their supervisor, manager or other officer who has
  responsibility for dealing with sexual harassment;
- lodging a formal complaint through the organisation’s
  complaint/grievance procedure; and
- approaching an external organisation such as their union, the
  Commission or a state or territory anti-discrimination
  agency.

Employers can also encourage employees to assist
in the prevention of sexual harassment in the workplace. For example, employees
will often be aware of inappropriate behaviour before management. Staff can be
encouraged to report early concerns about unwelcome behaviour before it becomes
a serious sexual harassment complaint.

Advice on developing internal complaints procedures is provided in the next
section.

Case example: Employer not vicariously liable

The respondent was a lawyer who, in connection with his employment, sexually
harassed a client of his employer.

The employer, an Aboriginal corporation, was a small organisation and Federal
Magistrate Rimmer accepted that it had made its expectations of employees in
relation to harassment clear and so did not find the employer to be vicariously
liable. The employer discharged its liability by:

establishing an appropriate complaint handling process;
directing senior field officers to orally inform all field officers that
sexual harassment would not be tolerated in any circumstances and severe action
would be taken in response to its occurrence;
organising workshops for staff on sexual harassment and
discrimination.

In addition, the employer had given a number of
warnings to the respondent about his behaviour in relation to a previous
complaint of sexual harassment against him.

McAlister v SEQ Aboriginal Corporation for Legal Services [2002]
FMCA 109

Case example: Employer vicariously liable

A woman worked as a catering attendant for a food services company in a
canteen at which employees of the respondent company regularly ate. One evening
an employee of the company exposed his genitals to her and then grabbed her
vagina before he walked away. The woman lodged a complaint of sexual harassment
against the company.

In the action before the Victorian Civil and Administrative Tribunal the
issue was whether the company could be held vicariously liable for the actions
of its employee. The Tribunal found that the company’s actions, which
included investigating the assault and recommending disciplinary action against
the employee, were insufficient to discharge its vicarious liability.

The following strategies were suggested by the Tribunal to prevent sexual
harassment in line with avoiding vicarious liability.

“The preventive measures to be taken would ordinarily include the
implementation of adequate educational programmes on sexual harassment issues
and monitoring of the workplace to ensure compliance with its sexual harassment
policies...Educational programmes might include the dissemination of literature
and the provision of seminars. There might be re-education programmes to ensure
that employees received disseminated materials and understood sexual harassment
policies.”

The Tribunal emphasised the need for employers to communicate policies to all
employees to ensure that they become aware of what may constitute sexual
harassment and that it is unlawful. The Tribunal held that it is not enough to
distribute materials only to managers, supervisors and contact officers.

Coyne v P&O Ports [2000] VCAT 657

Case example: Large employer vicariously liable

A female client of a bank was sexually harassed by the manager of her local
branch in the course of accessing banking services.

In trying to establish that it had taken all reasonable steps to prevent
sexual harassment, the bank gave evidence that it had circulated a code of
conduct on sexual harassment, as well as a video, letters, an instruction, a
brochure and an article. There was also a system of auditing managers to check
their compliance with a requirement that they discuss sexual harassment with
their staff every six months.

However, direct evidence from staff showed that there had been no recent
training on sexual harassment. There were also indications from staff that they
did not feel that they could or should take any action against inappropriate
behaviour. The Commissioner found that there was virtually no focus on sexual
harassment at the bank and that no training or auditing had been undertaken at
the branch office where the harassment had taken place.

The Commissioner said that, as a large organisation, the bank has a
responsibility:

...to ensure that its policies are communicated effectively to its
executive officers, and that they accept the responsibility for promulgating the
policies and for advising of the remedial action when breached.

Evans v Lee and Anor (1996) EOC 92-822

References

^[30] For further
information on harassment and new technologies see Joe Catanzariti ‘Online
and staying in line’ Occasional Paper Western Australian
Commissioner of Equal Opportunity, July 2000.
^[31] See the discussion of
procedural fairness at 5.2.
^[32] Contacts for complaints assistance from the Commission and state and territory
anti-discrimination agencies are at Appendix
B.

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