Recognising the “risk” in risk factors
Risk factors can be anything that may increase the likelihood of sexual harassment occurring. By identifying a risk factor, companies can prevent or limit the likelihood of sexual harassment while employees are under their care. Unfortunately, no company or industry is immune from sexual harassment occurring. There is an epidemic in Australia that requires everyone’s due diligence to fight.
In 2022, the Australian Human Rights Commission (AHRC) published a report outlining findings made regarding sexual harassment in Australian workplaces. It was found that one in three workers over the age of 15 have experienced workplace sexual harassment in the last five years. Most of these cases of sexual harassment were repeated and ongoing.
However, the Commission also found that less than one in five (18%) cases of sexual harassment have been reported. Of the cases reported, 40% of workers reported that their concerns were not adequately dealt with, or were ignored or brushed aside.
The frequently inadequate responses, alongside multiple other factors, means that sexual harassment often goes unaddressed in workplaces. It is therefore clear that merely having systems in place for reporting is not enough. Employers must consider further ways to prevent sexual harassment and fulfil their positive duty under the Sex Discrimination Act 1984 (Cth).
Risk Factors
Inappropriate comments and unwanted physical contact are frequent forms of sexual harassment. However, uncomfortable and invasive jokes and questions are often even more prevalent forms of sexual harassment, and can ak a a larger risk factor.
It is important to note that sexual harassment is rarely only about attraction. Just as often, sexual harassment and inappropriate remarks are used to embarrass and humiliate others. As such, more vulnerable individuals are far more frequently subjected to sexual harassment in the workplace. In fact, many cases of sexual harassment between individuals of the same gender can occur with heterosexual individuals as the perpetrators and LGBTQIA+ individuals as victims.
Furthermore, modern cases of sexual harassment rarely include explicit and obvious acts. Whether physical or verbal. Most employees and employers are aware that they cannot grope or force themselves on another. In reality, more subtle forms of harassment are being used. This may include invasive questions, being shown or told unsolicited jokes or explicit material, and demeaning comments.
Fostering a workplace environment that allows for employees to feel comfortable asking explicit or invasive questions can pose as a risk factor. There is a fine line between healthy workplace friendship and allowing employees to cross personal boundaries with each other. A line that employers are responsible for managing.
Who is a risk factor?
Individuals who are more likely to be targets of sexual harassment include:
- workers under 30 years of age;
- workers who identify as LGBTQIA+;
- Aboriginal or Torres Strait Islander workers;
- workers with disabilities;
- workers from culturally and linguistically diverse backgrounds;
- migrant workers or workers holding temporary visas; and
- people in insecure working arrangements such as casual, labor hire or part-time work.
Consequently, it can be seen that sexual harassment primarily targets those who hold less power. It is likely that these individuals are seen as more vulnerable and less likely to speak up about being subjected to inappropriate behaviour. Additionally, these individuals may face more difficulty in finding work. Therefore, are less likely to complain due to fears surrounding how it may affect their job security.
Furthermore, certain individuals – such as those who are disabled, from minority backgrounds, or identify as LGBTQIA+ – may be more likely to be the targets of invasive questions and demeaning stereotypes.
Developing a Speak-Up Culture
A number of steps can be taken by organizations to prevent sexual harassment. While by no means exhaustive, this article will seek to explore and elaborate on some steps and policies which can be highly important in creating a speak-up culture within the workplace.
Support
It is important that victims who come forward about experiencing sexual harassment receive support and understanding from those they are reporting to. While it is important for companies to exercise due diligence in investigating allegations and ensuring that fairness is done to all parties, it must be addressed that coming forward is an incredibly difficult thing to do and often requires great courage.
Therefore, no matter the nature of the allegation, the first step is always to ensure that employees are met with compassion. Comments, reactions, or behaviour that may imply that the complaint is an inconvenience or complication, even if minor, can cause significant harm to an individual already in an incredibly vulnerable situation.
Larger companies should ensure that HR or EAP services are available to the victim. While smaller companies may not have access to the same resources, it is nevertheless important that they offer the victim support and ensure that they have support systems in place.
Similarly, third parties speaking up about cases of sexual harassment they may have been witnesses to should also be met with support and encouragement.
Management or HR should also be cautious of diminishing or minimizing the employees experiences. Including language that would force the employee to feel as though they are overreacting or are unworthy of a safe working environment. Its not enoughh to imply acknowledge the complaint.
Both supporting victims and encouraging and educating about bystander approaches can be highly effective in creating a safe and positive workplace culture. Furthermore, encouraging employees to be active bystanders can take the pressure off of victims. Who are likely already highly distressed by their experiences with sexual harassment. A “speak-up” culture both creates cohesion and safety within a company, and ensures that victims do not feel helpless and isolated.
Thus, it is important to ensure that adequate and easily accessible complaint systems are in place which individuals can approach confidentially, and that employees are trained in these systems. Difficulty accessing support and complaint systems can act as a deterrence or cause further distress.
Though it may be difficult to remember at times, an individual coming forward and speaking up about sexual harassment should be seen as a positive thing. It is a sign that inappropriate behaviour in the workplace is not going unaddressed.
The issue is the inappropriate behavior taking place, not the reporting of this behavior.
Safety
One notable issue with responses to reports of sexual harassment is how investigation processes may include steps which cause the individual who raised the issue to feel unsafe. Specifically, this can occur when anonymity or confidentiality is breached.
Once again, it is important to ensure that fairness is afforded to all parties. There are circumstances in which it would be unjust to withhold evidence or information from an alleged perpetrator, especially when it may impact their ability to adequately respond to the allegations being made.
In these cases, the company must ensure that the rights and safety of both parties are balanced. Complainants should be offered protection and, when applicable, confidentiality and anonymity. While those accused should be offered procedural fairness and an opportunity to also be heard.
It is important is to ensure that all employees, and especially complainants, feel safe in the workplace.
Alongside other steps, it is important to begin monitoring the workplace closely to ensure that no bullying or adverse treatment occurs as a result of the reporting of sexual harassment. Furthermore, a company may negotiate to see whether relocation or paid leave for either party would be preferable and acceptable.
Taking into account that victims may often be from marginalized groups or in more vulnerable situations, this monitoring becomes especially important where there might be a power imbalance. Such as a difference in their positions within the company or possible managerial or supervisory relationships involved.
Furthermore, even if allegations are not founded to be substantiated (such as due to lack of evidence) the company should continue to ensure that retaliation or bullying does not occur. Speaking up about alleged sexual harassment should be encouraged so that the company can take a positive and proactive approach to preventing sexual harassment, and the right to do so is often entrenched in state and territory anti-discrimination and equal opportunity laws.
Security
Similarly, it is important that the company itself does not end up taking any actions which may end up constituting victimization or adverse action.
Fear that making a complaint could damage their career or position is a key reason that many victims of sexual harassment do not speak up about the treatment they have undergone. These fears also often lead to witnesses and bystanders choosing not to take action to support the victim.
This means that, in addition to steps taken to prevent individual bullying and retaliation, the company should also take steps to ensure that nobody who speaks up about sexual harassment is subjected to retaliation or adverse action by the company overall. An individual has the right to work in an environment free from sexual harassment and to make complaints in relation to their employment.
Actions such as suspension, demotion, termination, and performance improvement plans, among many other examples, can constitute adverse action or victimization. These steps should not be taken for the purpose of retaliating against the individual for having made a complaint or unfairly and without careful and thorough regard for the situation as a whole.
Similarly, it is important that potential offers of relocations or paid leave for the complainant are not posed as or taken to be punitive. A complainant should not feel as though they are being punished for having spoken up about sexual harassment, and should instead be offered these options as a choice. Doing otherwise may, even unintentionally, constitute victimization or be a breach of the Fair Work Act 2009 (Cth).
Importance of identifying risk factors
Ultimately, there are many steps that a company can take to promote a safe environment free from sexual harassment. Key among them is ensuring support, safety, and security for those who choose to come forward about sexual harassment in the workplace. By implementing certain measures to prevent sexual harassment, employees gain trust for their employer. The employees can work confidently knowing that their needs are being taken care of.
It is also highly important to establish a “speak-up” culture which encourages bystanders to take positive action to report and prevent sexual harassment, and understand why sexual harassment occurs and who is targeted most by sexual harassment.
While the number of workers who have been found to have experienced sexual harassment is disheartening, there are many positive steps which companies can and should take in order to promote comfort, safety, and unity within the workplace.
Together, we can work to prevent inappropriate and offensive behavior within workplaces and ensure that all employees are treated with dignity and respect.
Let us help you recognise risk factors
If you are an employee or contractor who has been subjected to sexual harassment, victimization, adverse action, or discrimination, know that there are ways to protect your rights. At A Whole New Approach, we can help you hold individuals or businesses accountable.
Contact us at 1800 333 666 or email mediate@awna.com.au for a free consultation.
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