The Positive Duty on Employers to Eliminate Sexual Harassment
The positive duty was introduced into the Sex Discrimination Act 1984 (Cth) (SDA) in December 2022 and was a key recommendation of the Australian Human Rights Commission’s (Commission) landmark Respect@Work Report in 2020 led by former Sex Discrimination Commissioner Kate Jenkins.
Organisations and businesses now have a positive duty to take ‘reasonable and proportionate measures’ to eliminate, as far as possible, the following unlawful behaviour from occurring:
- sex discrimination in a work context;
- sexual harassment in a work context;
- sex-based harassment in a work context;
- conduct creating a workplace environment that is hostile on the grounds of sex; and
- related acts of victimisation.
The positive duty in the SDA applies to ‘persons conducting a business or undertaking’ (PCBUs) and ‘employers’. Under the SDA, an employer is a person who employs another person or engages another person to perform work under a contract for services.
A PCBU has the same meaning in the SDA as under the model work health and safety laws. The term is a broad concept that extends beyond the traditional employer/employee relationship and includes all types of modern working arrangements such as public and private companies, partners in a partnership, franchisors and franchisees, sole traders and self-employed people. Regardless of their size or resources, all organisations and businesses in Australia that have obligations under the SDA must meet the positive duty.
Employers in Victoria have had a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible under the Victorian Equal Opportunity Act 2010.
Employers and PCBUs need to be ready for the Commission’s new enforcement and investigative powers, which commence on 12 December 2023 and allow the Commission to investigate and enforce compliance with the positive duty.
The Federal positive duty imposes a legal obligation on organisations and businesses to take proactive and meaningful action to prevent the unlawful behaviours noted above from occurring in the workplace or in connection to work. The focus is on taking preventative action to help create safe, respectful and inclusive workplaces. In the lead-up to 12 December 2023, employers should ensure they have robust systems in place to comply with their new positive duty obligations. This important change requires organisations and businesses to shift their focus to actively preventing workplace sexual harassment, sex discrimination and other relevant unlawful conduct, rather than responding only after it occurs.
The Unlawful Behaviour
Employers and PCBUs need to ensure they understand the unlawful conduct, which they need to eliminate as far as possible. Firstly, sex discrimination is when someone is treated unfairly, or is unreasonably disadvantaged, because of their sex, or a characteristic that is generally associated with people of their sex.
The kinds of attitudes that can lead to sex discrimination in a work context include making assumptions about the sort of work that people are capable or not capable of performing because of their sex or thinking that people are suited to different kinds of work because of their sex.
Sex discrimination can be either direct or indirect and both forms are unlawful under the SDA. Direct sex discrimination occurs when a person is treated less favourably than someone of a different sex would be treated in the same or similar circumstances. For example, a decision not to hire a qualified woman as an engineer because she is a woman and it is assumed that she will not fit into a workplace with lots of men would be direct sex discrimination.
Indirect sex discrimination occurs when an existing or proposed condition, requirement or practice (such as a rule or policy) may appear to treat everyone equally, but disadvantages, or is likely to disadvantage, people of a particular sex. It will not be unlawful discrimination, however, if the condition, requirement or practice is reasonable in the circumstances. An example of indirect discrimination may be a minimum height requirement for a job where height is not relevant to carrying out the role.
Such a requirement would likely discriminate disproportionately against women and some minority ethnic groups as they are generally shorter than men.
Secondly, sexual harassment is any unwelcome conduct of a sexual nature that occurs in circumstances in which a reasonable person, aware of those circumstances, would anticipate that the person being harassed might feel offended, humiliated or intimidated.
Sexual harassment can be overt, covert or subtle. It can happen in person and online. Examples include unwelcome physical contact, repeated or inappropriate invitations to go out on dates, sexualised gifts, images or videos and inappropriate staring or leering. The intention of the harasser is irrelevant and it can include one-off incidents or a pattern of behaviour that makes the working environment uncomfortable or threatening in a sexually hostile way.
Thirdly, sex-based harassment involves unwelcome behaviour that is sexist and demeaning in nature, but that is not necessarily sexual. As with sexual harassment, sex-based harassment is unlawful when it occurs in circumstances in which a reasonable person, aware of those circumstances, would anticipate that the person being harassed might feel offended, humiliated or intimidated. It can happen when a person is degraded, put down or disrespected because of their sex, or a characteristic generally associated with people of that sex.
Examples include asking intrusive personal questions based on a person’s sex (for example, inappropriate questions about menopause), making inappropriate comments and jokes based on a person’s sex, displaying images or making comments that are sexist or strongly prejudiced against particular sex or asking a person to engage in degrading conduct based on their sex.
The fourth category of unlawful behaviour is conduct creating a workplace environment that is hostile on the grounds of sex. A workplace environment may be hostile and intimidating to people of a particular sex, even if the behaviour is not specifically directed at them or any person. This is because general actions can contribute to a workplace culture that makes people feel degraded, humiliated or offended in ways that are associated with their sex.
Types of behaviours that might create a hostile workplace environment include conduct involving gendered stereotypes, such as making only women workers responsible for cleaning the office, making demeaning comments about anatomical attributes or topics such as pregnancy, the display or circulation of obscene, sexist, pornographic or sexual photos or materials and sexist, derogatory, suggestive or sexual emails, phone calls, text messages or online interactions including the use of emojis with sexual connotations.
As with sexual and sex-based harassment, whether conduct creates a workplace environment that is hostile on the grounds of sex is determined using an objective test, based on how a reasonable person would interpret the behaviour in that situation.
Finally, victimisation involves retaliatory action, or the threat of such action, against a person because they have asserted, or intend to assert, their rights under the law, or because another person thinks that they have. A person can also be victimised if they help someone else to assert their rights for example by being a witness.
Examples of victimisation may include excluding, dismissing, demoting or failing to promote someone because they have made a complaint excluding a worker in the workplace, or refusing them overtime shifts because they appeared as a witness in support of a colleague who made a complaint of sex-based harassment.
Commission Guidelines for Complying with the Positive Duty
On 9 August 2023, the Commission released guidance on how to comply with the new positive duty under the SDA. The guidelines set out the following seven standards that the Commission expects employers and PCBUs to comply with to satisfy the positive duty obligations under the SDA:
1. Leadership – Senior leaders should understand the positive duty and know specifically what conduct is unlawful. They are responsible for ensuring appropriate measures are taken, updated, reviewed and communicated to workers. An example of senior leaders and managers being informed and engaged about the positive duty is to include sexual harassment and positive duty compliance as a standing agenda item at the board and senior leadership management meetings.
2. Culture – Create a safe, respectful and inclusive culture, and regularly consult and engage with workers to discuss measures to eliminate potential sexual harassment risks and hazards. This can also be used as an opportunity to promote a ‘speak up’ culture which helps prevent potential legal, reputational and financial risks that could otherwise harm the stability of the organisation.
3. Knowledge – Create and enforce policies addressing respectful behaviour and unlawful conduct. Educate employees at all levels to promote a safe, respectful, and inclusive environment, including setting behaviour standards, informing them of their rights and responsibilities, and their role in preventing and addressing unlawful conduct.
4. Risk management – Consult with all stakeholders about sexual harassment risks and hazards and take a risk-based approach to prevent and respond to unlawful behaviours. Identify and assess circumstances that may give rise to the likelihood of sexual harassment incidents. This involves taking a work health and safety approach to sexual harassment and conducting regular risk assessments to identify hazards and then implement control measures to address the hazards.
5. Support – Ensure appropriate support mechanisms are in place for workers who experience or witness unlawful conduct.
6. Reporting and response – Ensure appropriate processes for reporting and responding to reports of unlawful conduct exist and these are regularly communicated to workers. Also ensure responses to reports of unlawful conduct are consistent, and timely and prevent harm and victimisation.
7. Monitoring, evaluation and transparency – Collect data to understand the nature and extent of workplace unlawful conduct and use it to assess and improve workplace culture and develop prevention strategies. For example meeting notes of consultation conducted with workers, survey results, feedback and exit interviews.
In the lead-up to the commencement of the Commission’s enforcement and investigative powers on 12 December 2023, it is important that employers and PCBUs take positive steps to ensure that their processes and systems are directed at both preventing and responding to sexual harassment and other unlawful behaviour in the SDA.
It will be important to identify and assess sexual harassment risks and prepare to comply with the positive duty, which may include:
• reviewing incident reports, exit interviews and codes of practice;
• conducting risk assessments, using information from focus groups, surveys, and workplace consultations;
• ranking and implementing controls to deal with sexual harassment from most effective to least effective (e.g., policies, procedures and training); and
• ensuring sexual harassment is considered a key priority at all safety meetings and at board and senior leadership management meetings.
Please note that this article is not intended to provide legal advice, but rather constitutes general guidance on upcoming changes in the rules. For more information, you may wish to contact our Workplace Relations team to assist you further.
If you need assistance with proactively reviewing and adjusting your contracts to ensure compliance with the new regulations, you can get in touch with Constructive Legal Solutions at firstname.lastname@example.org.