In the Australian workplace, “sexual harassment” has been unlawful since at least 1984. One major issue for employers to deal with is displaying or circulating sexual material in the workplace.
Back in 1984, when the laws were introduced, desktop computers, laptops and mobile phones, SMS, Skype and the internet were still largely future technologies.
Efforts to eliminate sexual harassment then may have focused simply on ridding the workplace of tangible sexual material, like raunchy calendars, sexually explicit posters and pictures, and pornographic magazines. More than three decades on, explicit pornography is available (so we are told) and able to be accessed, circulated and displayed in quicker, smarter and less obvious ways. This means that, as technology evolves, harassment and discrimination can also happen in less obvious and more covert ways.
Today sexual harassment also encompasses things such as offensive and explicit emails, social media communications, texting (and sexting), screen savers, and accessing sexually explicit websites and apps. Some obscene communications and behaviour would also be an offence under criminal law (e.g. child pornography and using a carriage service to cause offence), but other communications are simply inappropriate in the workplace, like using an explicit dating app on a mobile phone. In either case, such use of technology can facilitate sexual harassment.
Sexual harassment policies that are modern, clear and unambiguous
It is critical to have sexual harassment policies embedded in your workplace, and if this article gives cause for alarm, then we suggest you contact us for a no obligation discussion because there can be consequences for management as well as a sacked worker, as discovered in the case discussed below.
Note some of the points that we feel should be ‘front and centre’ in a sound Sexual Harassment Policy are set out below. You may want to check if they are covered in your Policy at work.
A strong opening statement on the organisation’s attitude to 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 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.
What is becoming more relevant are those cases where the pornography is not openly on display. That is, where the pornographic images are accessed on a work computer, or an employee’s own devices, in the relative privacy of an employee’s own office during business hours.
It is important that the policy be as wide as the types behaviour that might give rise to sexual harassment.
For example, the Australian Public Service code of conduct provides that employees must treat everyone “with respect and courtesy and without harassment” when acting in connection with APS employment. Therefore it is a breach of the code for an APS employee, when acting in connection with their employment, to sexually harass anyone – including his or her fellow employees. The phrase “in connection with APS employment” extends the prohibition not only to behaviour in the workplace but to behaviour anywhere that somehow or other has “connection with APS employment”.
In a recent case, three employees were dismissed by Australia Post for sending emails containing porn (including “hard-core” material) to work colleagues using work facilities. Before the case was appealed, two of the employees had their unfair dismissal applications rejected. The other was found to have been harshly dismissed, but was awarded compensation rather than reinstatement. However, on appeal, each of the employees had their applications upheld by a majority.
Importantly, the Full Bench on appeal held that accessing, sending or receiving and storing pornography should not automatically be regarded as serious misconduct or automatic grounds for dismissal. This means that factors such as: the culture of the organisation, and whether a relevant policy existed which was regularly reinforced within the organisation, must be taken into account. A past culture of tolerating pornography in email communications, a failure to monitor compliance with policies and to regularly reinforce the policy did not support Australia Post’s decision to terminate the employees.
A clearly worded definition of sexual harassment
There is no single, universally accepted definition of sexual harassment. However, the definition in the policy should be consistent with the legal definition 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.
Australia Post had a policy in place that prohibited what the employees had done. A new software system it had installed unearthed the fact that many staff, including supervisors and managers, had breached the policy. Forty employees were disciplined as a result. Some were dismissed; others received lesser sanctions.
Some examples of sexual harassment that are 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; sending or displaying for others offensive websites, apps, e-mail or social messages or computer screen savers; repeated invitations to go out after prior refusal; “flashing” or sexual gestures; sex-based insults, taunts, teasing or name-calling; staring or leering at a person or at parts of their body; unwelcome physical contact such as massaging a person without invitation or deliberately brushing up against them; 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; and stalking.
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.
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 a complaint 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.
If your business does not have these issues addressed properly then you may be exposed to an avoidable risk.
It was found on appeal that Australia Post had failed to take “active steps” to notify staff that breaches of the policy would be taken seriously, and noted that the policy did not say that dismissal was a likely sanction for breach. The Fair Work Commission also found there was a tolerance for pornographic material in the particular workplace, and said Australia Post should have taken steps to monitor policy compliance and manage risk much earlier than it did. The Fair Work Commission was also critical of the criteria used to determine the appellants’ sacking compared with that applied to those who were not dismissed, and the fact that managers who appeared equally involved as the appellants also escaped dismissal. They also noted the employees’ long service, otherwise good disciplinary records, and the harsh economic effect that dismissal would inevitably have on them.
We recommend that you undertake an audit of your internal Policies to see if they properly cover the points above as well as:
- An outline of the organisation’s objectives regarding sexual harassment
- A statement that sexual harassment is against the law
- The circumstances in which sexual harassment may occur
- The consequences that can be imposed if the policy is breached
- Information on where individuals can get help, advice or make a complaint
- A brief summary of the options available for dealing with sexual harassment
To find out more about conducting an audit or developing a sexual harassment policy please contact us.