With the backdrop of a number of sexual harassment claims currently in the news cycle and potentially plenty more. The issue of sexual harassment (and to some extent bullying) is prominent, a number of clients have sought our advice in defending their Directors, Executives, Managers and Supervisors and through vicarious liability the company against sexual harassment claims.
From the outset a sexual harassment claim must be handled with proper care and attention – a policy or process to deal with such claims is highly recommended. Failing this, the attention of the people managers in the business such as HR and People and Culture must be informed and if need be seek legal advice at the earliest opportunity.
If an Employment Lawyer is engaged to seek advice the following are some of the major steps to be taken (keep in mind this is just a snapshot of the steps taken).
1. Investigating the Claim
Once a sexual harassment claim is received it is important to thoroughly and properly investigate the claim. There are a number of issues to consider:
- What are the details of the claim?
- Who is the person that should be investigating the claim?
- What policies or procedures will need to be adhered to (if any)?
- Who are the parties to the claim?
- What background information is required?
- Who will be interviewed?
- What will the parties be asked in the interview?
- What are the findings?
It is integral that the workplace investigation is capable of being relied upon for any future action such as disciplinary action. There is also the element of a conflict of interest which requires further thought regarding the consequences of any real or perceived conflict.
The workplace investigation report itself will also require analysis.
2. Does the Conduct Constitute Sexual harassment?
Anti-discrimination laws broadly define sexual harassment.
In practical terms, it includes:
- Unwanted sexual advances
- Unwelcome conduct of a sexual nature
- Unwelcome requests for sexual favours
When advising Employers as to whether conduct is sexual harassment there are 3 main elements:
- Is the unwelcome conduct of a sexual nature;
- which makes a person feel offended, humiliated or intimidated; and
- is a form of sex discrimination.
Sexual harassment is not interactions, flirtation or friendship which is mutual or consensual. However, where the “line” is drawn can be difficult to ascertain.
Conduct can be found to be sexual harassment if a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated, or intimidated by the conduct.
Examples of sexual harassment include, but are not limited to:
- unwelcome physical contact such as pinching, touching, grabbing, kissing or hugging;
- staring or leering at a person or parts of their body and/or making suggestive comments about their body or appearance;
- sexual jokes or comments, sexually explicit emails, texts and/or conversations;
- requests for sexual favours;
- persistent requests to go out, when they are refused;
- displays of offensive material such as posters, screen savers, internet material etc. and/or accessing or downloading sexually explicit material from the internet; and
- intrusive questions or insinuation about a person’s private life.
3. What are the potential legal risks and is the Employer liable?
An employer can be held vicariously liable for acts of sexual harassment committed by an employee.
Defending a claim will be determined on whether all reasonable steps were taken to prevent the sexual harassment. Some of the elements that may be considered include:
- whether the Employer has a written sexual harassment policy;
- Whether sufficient training on the sexual harassment policy was undertaken;
- Did the employee know about the sexual harassment policy?
- whether the sexual harassment policy contains sufficient details including, a description of unlawful sexual harassment, disciplinary action that may be enacted if the policy is breached and details regarding the procedure for making complaints and reports about policy breaches;
- what were the steps taken by the Employer after it became aware of alleged sexual harassment.
The major claims that can be formed from a sexual harassment complaint are:
- an anti-discrimination complaint under state or federal jurisdiction
- a General Protections claim
- dispute under a relevant industrial instrument
Of course there may be other trigger events that lead to a workers compensation claim or unfair dismissal claim.
4. What are the potential resolutions?
There is a myriad of ways a complaint around sexual harassment can be resolved. There are of course many more steps than the above however here are some resolutions that may be considered:
- Disciplinary action be it a warning, demotion or after a show cause process, termination of employment
- Increased supervision / monitoring
- Training/further training
- Formal apology
- Communication of policies to workforce
- Dismissal of the complaint if it is found to have no substance
If you are dealing with a sexual harassment complaint – get legal advice immediately to ensure you understand the legal risks, liability and obligations as soon as possible. NB Lawyers – Lawyers for Employers undertake and offer an obligation free consultation. Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.
About the Author
Jonathan Mamaril , Australia’s trusted and leading employment lawyer with over a decade of experience.
Jonathan leads a team of handpicked experts in the area of employment law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.