Mar 11

Respect@Work 2020 – What the Sex Discrimination Commissioner’s Report means for Employers

On 5 March 2020, the Sex Discrimination Commissioner, Kate Jenkins delivered the Respect@Work: Sexual Harassment National Inquiry Report (2020).

The report is a culmination of the 2018 survey of data as well as hearings and submissions to the Commission over the last two years. The report comprehensively deals with the prevalence of sexual harassment in the workplace, its nature and causes and makes recommendations for prevention and response.

The report makes a number of key recommendations, including amending the Sex Discrimination Act to include a positive duty requiring employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, with powers for the Australian Human Rights Commission to enforce this. The report also recommends introducing the capacity to make ‘Stop Sexual Harassment’ orders akin to the ‘Stop Bullying’ orders made under section 789FF of the Fair Work Act 2009.

The Traditional Approach to Preventing Sexual Harassment Doesn’t Work

From our point of view, the Respect@Work report sounds the death knell to the traditional approach to managing sexual harassment for organisations who want to really make a change to the impact that sexual harassment has on their culture, talent and retention rates.

The report says:

“The current laws have meant that employers have tended to focus on what they can do to avoid legal liability for sexual harassment in the workplace, including by adopting a policy that prohibits sexual harassment, training staff about the policy and establishing an appropriate process for responding to any complaints, to show they have taken ‘reasonable steps’. Many employers have diligently adopted this approach for decades. But it is clear that this approach has failed to reduce sexual harassment in Australian workplaces.”

The traditional approach to sexual harassment taken by employers can be summed up as:

  • Putting in place a sexual harassment policy;
  • Introducing compliance-based training on sexual harassment. This is often done at induction and then every 12 -24 months afterward;
  • Investigating complaints of sexual harassment when a formal complaint is made.

The Respect@Work report points out several difficulties with the traditional approach. Compliance based training doesn’t provide education to employees about what sexual harassment is and the causes of and contributors to sexual harassment. Importantly it does not provide managers or employees with tools to create and contribute to a culture where sexual harassment does not occur, or to effectively deal with sexual harassment if it occurs in their workplace.

Training – More than Just Tick and Flick

The Report recommends a holistic approach that is more than just the traditional response of policy, compliance training, and investigation. The multifactorial approach recommended is that employers need to look at the following domains:

  • Leadership
  • Risk assessment and transparency
  • Culture
  • Knowledge
  • Support
  • Reporting
  • Measuring

The traditional interventions in the area of sexual harassment has been centred around responses to complaints of sexual harassment. By the time the complaint has been made, the opportunity to make the biggest impact on the problem has been lost.

The real change comes from engaging your employees in discussion and even debate about the kind of workplace culture you have, and the kind of culture you want to have.

Training that centres on leadership, workplace ethos and culture, and equips all employees to engage in difficult conversations in a respectful way will prepare the ground for the conversations about sexual harassment and respect in the workplace.

Sexual harassment training that centres around the causes and contributors to workplace sexual harassment and that asks employees to engage with nuanced cases studies and reflect and revise their own attitudes and judgments, will be much more effective in changing attitudes.

The key here is not a compliance focused ‘tick and flick’ but a culture and leadership focused conversation.

Approaches to Reports of Sexual Harassment

Traditional responses to formal workplace harassment complaints were seen as problematic in the report. On the one hand, employer inaction ‘sweeping complaints under the carpet’ or victim blaming are still seen far too commonly in workplaces.

On the other hand, the Commission heard that many employers saw that formal investigation was the only response to complaints of sexual harassment, even when the request of person who was harassed is that they did not want an investigation, they just wanted the conduct to stop.

The Respect@Work report suggests a multifactorial approach to reporting – enabling employees who are harassed to have multiple options for reporting the harassment and having a number of levels of intervention from ‘chats over coffee’ to formal investigation and disciplinary action, which can be used appropriately as the situation allows.

The Way Forward

If you would like to know more about how to change your culture around sexual harassment and implement recommendations from the report, then register now for my free lunchtime webinar on 26 March, where I will unpack the Respect@work report and outline some practical steps to help your company implement a best-practice approach.

About Jodie Fox

Jodie Fox  is passionate about helping people and organisations manage workplace conflict in a productive way. She specialises in workplace investigationsworkplace reviews and mediations to address and resolve complaints and foster a positive workplace culture. An experienced employment lawyer, she works with clients from a diverse range of industries providing pragmatic and strategic advice. She is a knowledgeable and engaging writer and speaker.

Please contact Jodie for an obligation free consultation via email or call (03) 9981 6558.

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