Dangerous Workplace Culture – Small Business Guide to Sexual Harassment

  • March 15th, 2021 at 2:38 pm

Sexual assault and harassment in the workplace have produced an avalanche of media coverage lately. The Brittany Higgins allegation and the Federal Government’s appalling response is headline news, along with the new accusations against Attorney-General Christian Porter.

That said, small business owners mustn’t take a head in the sand approach to possible harassment claims either, especially with the Women’s March 4 Justice rallies around Australia attracting large crowds and plenty of media coverage to protest against gendered violence. Moreover, there are plenty of risk and mitigation strategies to ensure that all your team members can work in a safe and harmonious environment.

The numbers tell a troubling story

Let’s start by acknowledging that the cost of sexual assault and harassment is highest for the victims. The mental health and wellbeing of a victim can take years to improve, and from my dealings with victims, I can attest that sometimes they never improve.

However, before we discuss the risks and mitigation strategies for small business owners, and against this month’s backdrop of International Women’s Day, the Australian Institute of Health and Welfare reports that 17% of women and 4.3% of men in Australia have experienced sexual violence either sexual assault or threats.[i]

Disturbingly, 25% of women and 6.5% of men with disability have experienced sexual violence[ii], while 16% of women have experienced sexual violence from a male they know. Moreover, in 2019 there were 26,892 victims of sexual assault in Australia (up 2% on 2018)[iii], 83% were female.

Acceptable behaviour

So, what do you think is acceptable behaviour? James Campbell Quick, PhD, a professor of leadership and management at the University of Texas at Arlington says, “Sexual harassment is really not about sex. It’s about power and aggression and manipulation. It’s an abuse of power problem.”

Additional words and phrases such as “respectful interactions” and “inclusiveness” also come to mind. Acceptable behaviour in the workplace is simply the behaviours that you have accepted. So, if inappropriate comments and behaviours go unchecked, this means they are perfectly acceptable in your workplace.

Consistency in regard to acceptable behaviour can be difficult to find, yet it is the most straightforward process. Standing firm against a group who believe “it is just a bit of banter” and that “you just need to lighten up” can become tiring.

From personal experience, I was once called into an organisation because a report indicated its female turnover was over three times that of their male counterparts. So, I was invited to investigate. This investigation included meeting with the GM and senior manager of the most affected area within the business. Within 10 minutes, a significant clue presented. One of the executives stated that they “just do not understand why these bitches keep leaving”.

As part of the examination, I wandered around with these executives. They openly discussed their female employees’ physiques within earshot of the workers as well as with other male employees. One of the female employees was a 17-year-old girl.

When we returned to the GMs office, there were photos on the desk. I was told proudly by the executive the images were of his daughters. So, I quickly asked the other executive if he thought “they’d go all right or not”. You can imagine the response. But I quickly informed these men that all I was doing was joining in on their earlier ‘banter’. I also pointed out that the women in the office were someone’s daughter, wife, mother, or sister.

However, what mattered more was their status as people with feelings, hopes, dreams, lives and, like every single one of us, reasonably fragile mental health. It took over 18 months to get that organisation right, but we did shift the behaviour and the company was even nominated for an Expansion of Employment Opportunities for Women (EEOW) award.

First things first

Apart from this firm’s progress, the story demonstrates that we are dealing with vulnerable people. On this basis, when discussing the risk to your organisation from sexual assault and harassment and the mitigation strategies, always be mindful that we are dealing with people and their wellbeing. If you still prefer to ignore the warning signs, then the potential costs to your SME are:

  • Absenteeism,
  • Presenteeism/loss of productivity (where people attend work but aren’t productive). This may apply to the victim and the accused,
  • Increased staff turnover,
  • The cost (opportunity cost) of staff time investigating the claims,
  • Medical expenses,
  • Potential legal costs, including compensation claims.

My colleague Anne Nalder, Founder & CEO, Small Business Association of Australia agrees with these sentiments. “In today’s workplace environment, business owners need to understand what is acceptable and what is not in today’s world. They need to prepare a series of ‘do and don’ts’ as to what workers, including management, need to be aware of and ways for dealing with complaints should they arise. Bosses must set the best standards. Failure to do so may result in litigation that can cost owners the business, jail time and a hefty fine. My advice is to have a preventative system in place rather than wait until something may occur.”

The risks

All small business owners, regardless of how small they are, must have risk management policies in place. Anne Nalder says, “This generally means identifying all the nasties that can occur, and then you put a policy in place as to how you will manage these.”

As the employer you have two main areas of risk including “vicarious liability” and “accessory liability”.

Vicarious liability – This is where the employer is held responsible for the behaviours and acts committed by their employees. The Sexual Discrimination Act states that an employer or principal, including a union, is liable for acts of sexual harassment committed by employees or agents connected with their duties unless ‘all reasonable steps’ were taken to prevent the event from occurring. This is more than just having the correct policies and procedures in place (which we will discuss shortly).

There are two main actions that employers must take to avoid liability for sexual harassment: 

  • Take all reasonable steps to prevent sexual harassment from occurring. An employer should have a sexual harassment policy, implement it completely and monitor its effectiveness. 
  • If an event does occur, an employer should have appropriate procedures for swiftly dealing with complaints immediately.

Accessory Liability – Individuals and employers can also be held liable under section 105 of the Sex Discrimination Act if they ‘caused, instructed, induced, aided or permitted’ an individual to commit an unlawful act. For example, if you (or your staff) are aware that an employee is being sexually harassed and fail to act, you may be held liable as an accessory to the harassment. There is no defense available for this type of liability.

There is no exemption for small business within the Sex Discrimination Act and the behaviour, and unlike bullying, does not need to be repeated or continuous.

Writing a sexual assault and harassment policy

Using a templated sexual assault and harassment policy isn’t usually the best course of action. The risks associated with getting it wrong are too significant. However, there are certain elements that we always incorporate into the policies we write for SMEs including:

  • A clear definition of sexual assault and sexual harassment,
  • Examples that are relevant to the specific working environment, and circumstances in which they may occur,
  • What sexual assault and sexual harassment are not,
  • A statement that these behaviours are illegal,
  • Consequences that can be imposed if the policy is breached,
  • Responsibilities of management and staff,
  • Information on where individuals can make a complaint and/or gain advice and/or seek help,
  • A summary of the options available for dealing with sexual harassment or assault.

The 10 steps to take when responding to sexually related complaints

Here’s what to do if a member of your team is experiencing sexual harassment at work.

  • Inform the CEO/MD, etc.
  • Seek legal advice
  • Treat the complainant with the utmost of respect
  • Investigate the claim promptly and thoroughly (follow your own policies and procedures – and if you don’t have them – get them!)
  • Treat the accused with the utmost of respect
  • Take appropriate action
  • Where applicable; cooperate with any law enforcement agencies
  • Ensure the complainant and accused are not vilified
  • Be careful with your texts and emails, and preserve your documents – use professional language, no assumptions and refer to policies and procedures. The shock of a complaint may create unconsidered responses that later turn up in discovery, and even if well intended, can cause issues
  • Assess the damage and consider your media strategy – just in case.

Breakout: A quick reminder

  • Individuals have the right to accept or refuse sexual contact at his or her discretion; and no one deserves to be sexually assaulted.
  • Each sex has equal ability to control their sexual behavior and that they are ultimately responsible for their own actions. (The survivor is not responsible for the assailant’s actions.)
  • Sexual assault is a violent crime and is often premeditated.
  • Each survivor of sexual assault is a separate individual having distinct and separate needs and should be treated accordingly. There is no uniformly accepted “normal” reaction to sexual assault.

Remember, YOU ARE NOT TO BLAME, even if:

  • Your attacker was an acquaintance, date, friend or spouse, girlfriend or boyfriend, parent, sibling, guardian, other relative, professor, coach, or even employer.
  • You have been sexually intimate with that person or with others before.
  • You were drinking or using drugs.
  • You froze and did not or could not say “no” or were unable to fight back physically.
  • You were wearing clothes that others may see as seductive.
  • You said “yes” but later said “no” and were not listened to.

Written by Eric Allgood, CMgr FIML CAHRI, SBAA Think Tank Member and CEO of Small Business Assistance and Advisory Service

To discuss putting a sexual assault and harassment policy in place contact us and we will put you in touch with Eric or one of HR/IR experts.

[i] https://www.aihw.gov.au/reports/domestic-violence/family-domestic-sexual-violence-in-australia-2018/summary

[ii] https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia/contents/justice-and-safety/violence-against-people-with-disability

[iii] https://www.abs.gov.au/statistics/people/crime-and-justice/recorded-crime-victims/latest-release