The Term “sexual harassment” was popularized by journalist and feminist, Lin Farley in 1975 during a hearing of the New York Human Rights Commission. Public awareness was heightened and laws were passed during the 1970s and 80s in various jurisdictions prohibiting sexual harassment. In Australia it started with some States and then culminated with the passing of the federal Sex Discrimination Act in 1984. Companies proceeded to institute compulsory training on sexual harassment and took steps to sharpen their grievance procedures, despite all of this, sexual harassment in the workplace has remained a perennial and intractable problem in Australia, and across the globe.
After decades of little progress in the reduction of sexual harassment statistics, the same Lin Farley in a 2017 article in The N. Y. Times lamented that that the language around workplace harassment had over time been robbed of its force. She wrote: “at first it felt as if the term had the potential to change everything…( but now).. it has been co-opted, sanitized, stripped of its power to shock, disturb and galvanize “
The next major stimulus has been the #MeToo movement which started in 2017 in the US and resounded globally. It has had significant impact in Australia as elsewhere.
Legislation, both at state and federal levels in Australia has had little appreciable effect on the alarming levels of workplace sexual harassment. The Australian human Rights Commission 2022 survey on workplace sexual harassment reflects once again some confronting statistics. 77% of Australians have experienced sexual harassment at some time in their lives-89% of women and 64% of men. About 1 in five persons have experienced sexual harassment in the last twelve months and 1 in three in the last five years. Yet only 17% of those who said that they had been sexually harassed had lodged any kind of complaint.
The problems with the system which has existed for the past 50 years are well recognized.
The AHRC Respect@Work Commission which started its work in 2018 and finished in 2020 recognized that an entirely new approach to this issue is needed. Their report set out some 55 recommendation have now been accepted and will be reflected in changes to the law.
Amendments to the Sex Discrimination Act 1984 (Cth) and related legislation have introduced what is called the “employer’s positive duty “in relation to various types of unlawful behaviour. The legislation requires employers and persons conducting a business or undertaking (PCBUs) to “take reasonable and proportionate measures to eliminate unlawful conduct as far as possible”. The unlawful acts include sex discrimination, sexual harassment, sex-based harassment, hostile work environments and victimization.
A paradigm shift has resulted in the way the employers will be required to act in order to reduce instances of sexual harassment in their workplaces.
Since the passing of the legislation last year, employers have been given a year to prepare their organisations to meet the requirements of the new legislation. That year is up on 12th December 2023. From that date the Australian Human Rights Commission will have powers to investigate breaches of the new duty and to take measures against organisations deemed to be falling short. This will include the power to conduct investigations, compel the production of information and documentation and obtain orders from the federal courts to enforce compliance.
The AHRC has recently issued guidelines for administering the new legislation
The four overarching principles which inform the conceptual framework are:
Quite clearly, the conceptual focus is now upon the complainants or victims whose circumstances, interests and needs are paramount.
The actual implementation and execution of the positive duty will be assessed by the AHRC in accordance with seven standards. Employers now need to satisfy each one of the standards but obviously in a manner and to a degree that is relevant to the nature and size of their organization.
The standards are:
Legislating the “positive duty” to eliminate sexual harassment from Australian workplaces marks an entirely new chapter in meeting this challenge. Organisations and their leaders should welcome this change. If leaders strive to meet the requirements of the AHRC seven standards they will not only reduce the risk of unlawful behaviour but will also make their organisations more respectful, more inclusive and more collaborative and they will retain many people of talent who would otherwise be lost to the organisation.
Errol Price has decades of experience in commercial law, and specifically as an advisor to leading companies on equity, discrimination and workplace relations. He has helped in formulating human resource and workplace relations policies for many multinational and blue-chip companies as well as advising clients on the impact of equity and anti-discrimination have helped position Symmetra as one of the leading consultancies on diversity and inclusion. He has expertise in the laws pertaining to discrimination, harassment and bullying in the Australian workplace. This has provided the legal foundation for Symmetra’s highly successful diversity, EEO and anti-bullying and harassment programs, delivered across Australia for the past 15 years. Connect with Errol via LinkedIn.