Resources

AICD director’s guide to preventing and responding to sexual harassment at work

AICD Governance Snapshot: The board’s role in preventing workplace sexual harassment

Myth Busting Sexual Harassment at Work — Diversity Council Australia bit.ly/3gQJwte

Respect@Work: Sexual Harassment National Inquiry Report — Australian Human Rights Commission bit.ly/2QJEB2n

Australian Human Resources Institute (AHRI) chief executive Sarah McCann-Bartlett FAICD is still having conversations with people who say that certain comments and actions in a workplace, which are offensive and demeaning, can be viewed as “just joking” or part of casual workplace banter. It serves to underscore her point. Leaders will be confronted with a spectrum of behaviour when it comes to workplace harassment, but all of it is inappropriate behaviour that contributes to an unsafe environment.

“If we see these poor behaviours going unchecked, then that leads to worse and more extreme behaviour,” says McCann-Bartlett. “There’s this huge piece to really deeply understand what sexual harassment is.”

She notes there is a knowledge gap even at the most senior levels when considering workplace sexual harassment and the characteristics that define a perpetrator. “What is the intent of the perpetrator? Irrelevant. What is their position in the organisation? Irrelevant. What is their work performance? Irrelevant.”

Instead, directors need to consider the impact of inappropriate behaviours on the victims, objecting to a culture which rules certain behaviours in or out based on their perceived seriousness. “It depends who is on the receiving end. It may not be small to them,” she says. “I’m really pleased we’re starting to talk about zero tolerance because zero tolerance actually covers, ‘joking or banter’.”

“Without the board, the executive and managers actually doing their jobs, you won’t see any change.”

McCann-Bartlett says boards need to push themselves to consider whether the organisation really understands the damaging effect sexual harassment has on victims, organisational reputation, finances, ability to attract and retain employees.

AHRI is recommending boards include sexual harassment in their risk register and suggests it is discussed at board level as a business risk. McCann-Bartlett explores what directors should be looking out for, what these board level conversations should involve, and how to enlist expert support early.

85% of Australian women and more than 50% of men have been sexually harassed in their workplaces at some point in their lives —in 79% of cases, one or more of the perpetrators were male.

Source: Australian Human Rights Commission Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces 2018.

What are the organisational risk factors?

To create an anti-sexual harassment culture, directors need to mitigate against victim blaming and low organisational knowledge or “maturity”. The risk factors include a low level of organisational diversity, strong hierarchy and power structures or a weak culture.

Boards and management should not silo these risk factors to their HR teams to manage, and instead consider them holistically, according to McCann-Bartlett. “The board needs to know what the executive is doing to ensure that everyone understands the organisation and what behaviours the organisation expects of them. And going down another level, do our managers actually have the capability to coach employees in these behaviours, in understanding these behaviours?”

HR should take the lead guiding and implementing, she says, “but without the board, the executive and managers actually doing their jobs, you won’t see any change. It’s not that our members in HR want resources. It’s actually that the organisation needs resources.”

This requires a healthy dose of common sense. If risk factors are present, the first major warning sign that the organisation’s culture is not up to scratch is if there are zero reports of workplace sexual harassment. “The board needs to ask if common sense is built into reporting,” says McCann-Bartlett. “If there are no reported incidences, but the risk factors for sexual harassment in the organisation are still high, there has to be something wrong.”

Conversely, where reporting exposes elevated levels of sexual harassment, boards can appoint a subcommittee that has a people and culture focus to guide its work. A crucial oversight task for any governance team is ensuring all investigations are independent, thorough and victim-centric.

Get the full picture, every meeting

How does the board surface the information it needs to assess whether its culture is protecting its staff? McCann-Bartlett says sexual harassment should be a standing item on board agendas and rolled up into the regular board reporting framework, with an expectation of ad hoc meetings and discussion as appropriate.

That reporting should carefully monitor the progress management is making implementing the programs, training and procedures. Outcomes to mark against include whether victims of sexual harassment more frequently leave the organisation than not.

Directors can go beyond the boardroom to ensure there isn’t a disconnect between what’s seen at a board level and the reality. “What’s below the water? Is there a way we can estimate the level of non-reporting by employees? How can we get a first-hand view from employees?”

McCann-Barlett says boards could deliver on their commitment to take workplace sexual harassment seriously by going deeper and walking the floor, talking to employees directly, and providing board buy-in for externally facilitated focus groups among employees where results are anonymised.

Photo: Getty Images.

Have experts on standby

Boards need self awareness to know when their skills composition is not specialised enough to give the right guidance, McCann-Barlett says, emphasising that were a case like the Brittany Higgins sexual assault to occur at a workplace, it may constitute criminal conduct and should be handled as such. “Where a sexual assault occurred, it would be unlikely that in your organisation, even with a very strong HR team, you have that ability to deal with a rape.”

In such instances, organisations will have legal obligations to report allegations to external agencies. Boards should ensure that management has in place policies that appropriately reflect such obligations.

Boards can enlist a pool of experts who are assessed and are sitting on a panel so that part of an organisation’s process is to defer and outsource that expertise where it’s needed. “It means there’s no delay,” says McCann-Bartlett.

A state of readiness is critical when managing an incident of sexual harassment at a senior leadership level. “I would recommend that a board make sure that within your response policies, or what was in your response procedures, that there is a very specific procedure that the board has signed off on for a case, a possible case of an allegation of sexual harassment against the CEO,” she says.

“Hopefully, there won’t be any [allegations]. It will be a very challenging time for the board, so actually having a procedure in place that everybody has talked about prior to any potential incident, allows the board to then follow the process and undertake a very independent and practical response.”

Guidance for HR and employers

AHRI is working with its members, the Australian Human Rights Commission and other specialists and organisations to develop practical and timely guidance for HR and employers. This guidance will support and inform the Respect@Work recommendation for a positive duty in the Sex Discrimination Act 1984 (Cth) for all employers to take reasonable and proportionate measures to eliminate sexual discrimination, sexual harassment, bullying and victimisation.

Harassment is more pervasive for First Nations people, people with a disability, and for gay and lesbian people and those who identify as non-binary or trans-gender.