A possible legal solution to sexual harassment at work

With a 2018 Australian Human Rights Commission report finding that 23 percent of women experienced sexual harassment at work in the prior 12 months alone, researchers are grappling with how to address this issue.

In their paper ‘Preventing sexual harassment in work: Exploring the promise of work health and safety laws’, Associate Professor Belinda Smith from Sydney Law School, Melanie Schleiger from Victoria Legal Aid and Liam Elphick from the University of Western Australia argue that Workplace Health and Safety (WHS) legislation could be used to help prevent workplace sexual harassment.

Since WHS legislation requires employers to try to prevent harm to their workers, it could treat sexual harassment as a workplace harm, the authors contend.

Published in the Australian Journal of Labour Law, their paper also analyses how the Sex Discrimination Act 1984 (Commonwealth) (SDA), which has been used to try to address discrimination and sexual harassment, falls short.

What is sexual harassment, legally?

The SDA defines sexual harassment as:

• an unwelcome sexual advance
• an unwelcome request for sexual favours or
• other unwelcome conduct of a sexual nature

in circumstances in which a reasonable person would have anticipated that the person harassed would possibly be offended, humiliated or intimidated.

Evidence shows that sexual harassment in the workplace is more likely to occur to women, and under three interrelated conditions:

• where the workplace is male dominated
• with tolerant supervisors, such as managers who ignore the problem or discourage reporting
• in organisations with tolerant climates, where it is perceived that there is personal risk for those who complain, or that complaints will not be taken seriously

How WHS laws can complement the SDA

Associate Professor Smith said that the SDA is limited because of four main features:

• it prohibits sexual harassment rather than imposing a positive duty to prevent it
• while, in workplaces, sexual harassment is generally gendered (perpetrated against women) and systemic in nature:
  • the SDA is only enforceable by individual victims
  • enforcement is primarily through a private, confidential conciliation process
  • remedies granted are ordinarily individual and compensatory in nature

“Essentially, these anti-discrimination laws treat sexual harassment as if it is simply an individual act or interpersonal problem, rather than part of a wider cultural problem within organisations,” Associate Professor Smith said.

By contrast, WHS laws impose a positive duty on businesses to prevent harm to their workers, by identifying systemic risks and developing responses to minimise those risks.  This includes the risk of sexual harassment.  

WHS laws also impose duties on businesses to consult with workers and are regulated by state and commonwealth agencies with the power to impose sanctions on those who breach them. 

What needs to happen for WHS laws to help?

“For WHS laws to be effective in combating sexual harassment in workplaces, agencies need to acknowledge this remit, and they need to be equipped to deal with it,” Associate Professor Smith said.

For example, Safe Work Australia, the commonwealth agency responsible for regulating WHS laws, has now acknowledged that psychological harm is a harm to be prevented under WHS laws, but its guidance for employers does not yet expressly cover prevention of sexual harassment. This is likely because traditionally, workplace harms were perceived in physical terms. Also, psychological harms are often invisible, and are consequently harder to define for compliance purposes.

“The ‘newness’ and distinctiveness of psychosocial hazards like sexual harassment therefore requires additional training and resourcing for regulators,” Associate Professor Smith said.

She added that another challenge faced by WHS agencies, even if they do accept the sexual harassment remit, arises from the nature of sexual harassment often being embedded in workplace cultures. “WHS agencies have traditionally shied away from questioning such ‘industrial relations’.”

Not just a theoretical push

“There is growing consensus among worker organisations in Australia that WHS agencies have the power to address sexual harassment in work, and should use it,” the researchers said in the paper.  

“By harnessing these laws in addition to the SDA, there can be systemic, preventative action against workplace sexual harassment.”

Declaration: This research was funded by a grant from Sydney Law School.