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The costly consequences of sexual harassment

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The topic of sexual harassment has been featured heavily in mainstream media in the last few weeks in light of complaints against Mark McInnes, CEO of David Jones and Mark Hurd, CEO of Hewlett Packard.

In a report recently published by the Human Rights and Equal Opportunity Commission, 65% of all cases of sexual harassment occur in the workplace, and are spread evenly across workplaces of all different sizes.

Sexual harassment can have significant negative effects on business such as increased productivity costs, staff performance impairment and the natural costs that flow on from a high staff turnover.  Furthermore, allowing sexual harassment to remain unchecked can expose employers to the cost, inconvenience and damaging publicity of legal proceedings and compensation claims.

Under both Federal and State legislation, there are three elements in establishing an offense of sexual harassment:

  • The behavior must be unwelcome (it is irrelevant that the conduct may have been unintentional)
  • It must be of a sexual nature and
  • A reasonable person would have anticipated that the person who claims they have been sexually harassed felt offended, humiliated or intimidated

It is important to note that under the law, an employer may in certain circumstances be found vicariously liable for the conduct of its employees, such as offending any sexual harassment or discrimination laws.

A number of practices can be used to prevent sexual harassment from occurring in the workplace, including the introduction of effective workplace policies, continually revising and monitoring the policies, providing ongoing preventative training to all levels of staff, following proper procedures when investigating complaints and disciplining offenders

MST recommendations

A good policy used to prevent sexual harassment should contain the following:

  • A clear definition of sexual harassment and what actions will constitute sexual harassment
  • An effective grievance and disputes procedure, with effective responses by the employer to allegations of sexual harassment
  • An indication that the process of grievance investigation will be completely confidential and non-discriminatory
  • Encouraging a support person to be present at any stage of dispute resolution
  • A list of clear consequences including what action will be taken against employees who are found to be in breach of the policy

Mason Sier Turnbull has extensive experience in assisting its clients with complying with the most current workplace relations laws, including laws relating to sexual harassment and discrimination.

Please contact one of our Workplace Relations lawyers for further information.

Authors: Chao Ni and Charles Cody

Send an email to Chao