Weinstein puts sexual harassment in the spotlight – Is your business protected?
Recent allegations against Harvey Weinstein have highlighted the prevalence of sexual harassment in the workplace. A study conducted by the Australian Human Rights Commission found that 1 in 4 women surveyed had been sexually harassed in the workplace in the last five years.
In some circumstances, employers can be liable for sexual harassment claims made against employees for acts that occur in the workplace or in connection with employment. This would include work related social functions (such as Christmas parties) and business trips.
How can employers avoid liability for sexual harassment?
Employers have a positive duty to take reasonable measures to eliminate sexual harassment as far as possible. Employers must also take ‘reasonable precautions’ depending on their size, resources, and nature of the organisation. These ‘reasonable ‘precautions’ can include policies, induction, training and education programs, internal complaints procedures, and monitoring.
Employers must review their sexual harassment policies and training, and manage complaints appropriately. A vigorous sexual harassment policy should:
- specify the internal procedures for making complaints, conducting investigations, and implementing disciplinary procedures;
- clearly outline what conduct would constitute sexual harassment;
- emphasise that sexual harassment is unlawful;
- discuss the options available for dealing with a sexual harassment complaint, including counselling; and
- specify the potential consequences for breach of the policy.
It is important to note that merely having a policy is not enough. Failing to implement or communicate a policy to all staff will undermine the operation of the procedures set out in the policy. Sexual harassment policies and procedures must be understood by every member of the organisation. To achieve this, employers could implement training and provide copies of the policy to staff. Processes such as confidential staff surveys can also be used to monitor workplace environment and culture, and understanding of policies and procedures.
Case example: Hughes Narrabri Bowling Motel Limited [2012] NSWADT 161
The case of Hughes Narrabri Bowling Motel Limited provides an example for how employers can avoid facing liability for sexual harassment in the workplace. In this case, an employee alleged that she was sexually harassed by a supervisor. The NSW Administrative Decisions Tribunal accepted one of the three allegations, ordering the supervisor to pay $7,500.00 in damages.
The employee also claimed that the company was liable for the sexual harassment. The ADT rejected this claim, finding that it was “difficult to envisage what more an employer could have done, short of prevention.” So what did the employer do to avoid liability?
When the employee made the complaints, management took the allegations very seriously. The employee was interviewed immediately, and all potential witnesses and the perpetrator were interviewed the next day. This resulted in no further incidents of sexual harassment occurring. This case shows that just a policy may not be enough to prevent liability for sexual harassment. In this case, the ADT’s decision focused on the swift investigative response of the employer.
The best method for managing the risk of sexual harassment is prevention. The Harvey Weinstein scandal is a harrowing reminder of the prevalence of sexual harassment, and the need for employers to demonstrate a zero tolerance stance to this conduct. Employers should review their policies, training practices, and investigation strategies to ensure maximum protection.
Want to know more about protecting your business from sexual harassment claims? Looking for an experienced solicitor in Newcastle, Sydney or the Hunter to assist you with your employment law matters? Call us on (02) 4929 7002, email us or complete an enquiry form.
Image from Entertainment Tonight.
