AICD resources

A director’s guide to preventing and responding to sexual harassment at work bit.ly/3t5LJ6n

Preventing Workplace Sexual Harassment: obligations for directors bit.ly/3nGPhuG

Sexual harassment has been unlawful in Australia at a federal level since 1984, yet is largely misunderstood, woefully under-reported and badly handled. But it should not be seen as an individual problem as it can also have causes and consequences at an organisational level. It is the board’s responsibility to prevent and address sexual harassment. One of the risk factors is that senior leaders and directors have a poor understanding of the issues.

What is sexual harassment?

Sexual harassment is any unwelcome conduct of a sexual nature that a reasonable person would anticipate, in all the circumstances, to cause offence, humiliation or intimidation. Whether conduct is unwelcome is subjective. It does not matter if the other person was aware it was unwelcome, although there is also a “reasonableness” test in the Sex Discrimination Act 1984 (Cth).

What the law says

Sexual harassment is unlawful under the federal Act and in all Australian state and territory jurisdictions. Each jurisdiction establishes procedures for dealing with allegations of sexual harassment.

Sex discrimination laws make it an offence to victimise a person who makes an allegation or a complaint of unlawful sexual harassment. Importantly, employers can also be vicariously liable — that is, legally responsible for the actions of their employees or agents — if they fail to take all reasonable steps to prevent the sexual harassment from happening. At its more extreme, sexual harassment may constitute a criminal offence and should be handled as such.

“Evidence shows that the certainty of consequences is more important than their severity, so the board must ensure it is communicating a zero-tolerance position and follows through.”

Set minimum expectations

Make sure the organisation has an adequate policy in place and that all staff are aware of it. Human resources and management should review and update it regularly.

Questions:

  • Do you have an adequate policy on preventing and addressing workplace sexual harassment?
  • Is the policy approved by the board and regularly reviewed?

Talk about it often

The board should regularly include discussion on relevant committee and board meeting agendas. Evidence shows that the certainty of consequences is more important than their severity, so the board must ensure it is communicating a zero-tolerance position and follows through. Key messages from the discussions should be circulated to staff.

Directors should take opportunities to emphasise to staff the commitment to preventing and addressing sexual harassment and building a respectful, just and safe culture. All staff should be aware of the commitment of the board to addressing and eliminating sexual harassment and of the consequences.

Questions:

  • Do all directors have an adequate understanding of workplace sexual harassment and its drivers?
  • Are the board’s expectations on prevention clearly communicated to staff?
  • How long has it been since the board communicated these expectations to employees?

Scrupulously model appropriate behaviour

Directors should actively demonstrate their personal commitment to eliminating sexual harassment by behaving respectfully, fairly and ethically at all times. Communication styles and behaviour of directors and senior management should be raised in performance discussions.

Questions:

  • Are you confident directors’ personal communication styles and behaviour model the desired culture?
  • Do you discuss this at board level?

Recruit the right leaders and hold them to account

Photo: Getty Images.

Focusing on gender balance in leadership will support efforts to address the issues as diverse leadership teams bring a variety of perspectives and are more likely to model equality. Using recruitment/promotion strategies that create a diverse workforce should start at the top

Questions:

  • Are an ethical and respectful management style and commitment to eliminating sexual harassment part of the performance indicators for senior management?
  • Are these indicators considered in senior management performance reviews and remuneration settings?

Encourage reporting and ensure there is no backlash for doing so

Sexual harassment is notorious for underreporting. People who have experienced harassment often perceive the processes as adversarial or hostile — and they fear reprisal from their harasser or workmates. The absence of any reports in a reasonable sized organisation should be interrogated further by management and directors as it may suggest the absence of a speak-up culture.

Questions:

  • Does the board receive periodic reporting on sexual harassment?
  • What are the trends in reporting?
  • Does the board consider potential systemic issues when reviewing periodic reporting?

Monitor regularly

Directors should develop, with management, a set of metrics that will be regularly monitored by the board. This will include metrics about informal and formal reports of sexual harassment, and any litigation. It should include data about early indicators and risk factors, particularly around culture and gender equality. For example: What are sex ratios at various levels? How are women represented in leadership? Is alcohol prevalent in the workplace? Is the workplace dispersed or decentralised? Are there significant power discrepancies in the workforce?

Questions:

  • Are you comfortable that the board understands the dynamics and prevalence of sexual harassment in the organisation and how it relates to the organisational culture?
  • Does the organisation conduct staff surveys that ask about perceptions of the culture and sexual harassment?

Manage risks

It is the directors’ and officers’ duty to eliminate the risk as far as practicable. Involving staff in developing controls will help build staff buy-in and build a stronger risk management approach.

Questions:

  • Has the organisation undertaken a risk assessment specifically for workplace sexual harassment?
  • Does the board, or relevant board committee, consider workplace sexual harassment risks in overall risk management and governance?

Consider the board’s public position and approach to confidentiality

Some organisations routinely require nondisclosure agreements in settling sexual harassment reports or complaints. The board should closely consider whether this is the best approach to managing sexual harassment, as it can sometimes be used to silence victims. Organisations may consider setting a leadership standard by publicly reporting the number of sexual harassment reports, what steps are being taken to eliminate sexual harassment, and the number of non-disclosure agreements (NDAs) made each year.

Questions:

  • Are you confident that reporting of sexual harassment balances confidentiality with transparency and leadership?
  • Does the board understand the use (if any) of NDAs within the organisation?

Ensure the organisation deals constructively with reports

The board needs to be confident that internal processes encourage reporting and deal effectively with reports, providing natural justice to all parties. Confidentiality, reporting and referrals to external organisations need to be clear and well understood. Processes should provide clear and appropriately strong consequences for sexual harassment, ensuring there is appropriate communication of outcomes to staff, and noting the need to balance confidentiality and natural justice.

Question:

  • Are you confident your organisation’s management of reports, whether formal or informal, is based on due process and natural justice and reflect your commitments to eliminate sexual harassment?

Ensure the organisation adequately resources work to prevent and address harassment

Once training is introduced, it is important staff at all levels, plus directors, are given tailored training. This should include training to support bystanders/witnesses to intervene. Training should be regularly refreshed.

Question:

  • Have directors and staff at all levels received training about sexual harassment?

Build a just, respectful and safe culture

A culture of respect, natural justice and safety is a precondition for eliminating sexual harassment. This means staff should commonly perceive internal processes generally as fair and should feel trust in the organisation, their colleagues and leaders. Staff can recognise where statements about sexual harassment are merely lip service and where that is so, it may foster a culture of impunity and tolerance for sexual harassment.

Questions:

  • What tools does the board have to assess organisational culture and staff morale?
  • Is the board confident that the culture is one of respect and safety?

Promote gender equality

Power imbalances and inequality are risk factors for sexual harassment, so it is important that organisations that are serious about eliminating sexual harassment promote gender equality, including in leadership roles.

Question:

  • Are there adequate initiatives in place to promote gender equality in the organisation, including in leadership roles?