Mishandling sexual harassment: high-risk area for HR

by Stephanie Zillman26 Mar 2012

A former employee of software giant Oracle is suing the company for close to $500,000, claiming she was subjected to more than six months of sexual harassment from a colleague and that she was demoted when she complained. Therein lie many lessons for the vigilant HR professional.

Rebecca Richardson, former projects manager at Oracle in Sydney, claims her work colleague Randol Tucker repeatedly humiliated her in front of other staff by making lewd comments. A federal court was told that when Richardson complained about his behaviour and requested she no longer work alongside him, the accused stayed in the same job while she was “demoted” and moved to a role with less responsibility. Tucker was given a formal warning by Oracle following the complaint and wrote an e-mail apology, but Richardson is claiming it was “not sincere”. A lawyer representing the defendant has claimed the incidents were nothing more than “light-hearted banter” between workmates, and the case is continuing.

Regardless of the finding, mishandling a sexual harassment complaint can cause irreversible brand damage and future would-be candidates can be dissuaded from applying.

According to the Australian Human Rights Commission, sexual harassment is any kind of unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances. Sexual harassment in employment is unlawful under the Sex Discrimination Act 1984, and notably, does not have to be repeated or continuous to be against the law – it can be a one-off incident.

When is sexual harassment unlawful?

Sexual harassment is unlawful in almost every employment situation and relationship. For example, sexual harassment is unlawful at the workplace, during working hours, and at work-related activities such as training courses, conferences, field trips, work functions and office parties. It is also unlawful between almost all workplace participants.

What are my legal obligations as an employer?

As an employer, you may be held legally responsible for acts of sexual harassment committed by your employees. This is called ‘vicarious liability’. The Sex Discrimination Act makes employers liable for acts of sexual harassment unless they have taken ‘all reasonable steps’ to prevent it from taking place.

While there is no uniform standard expected of employers in taking all reasonable steps, at a minimum employers would usually be expected to:

  1. have an appropriate sexual harassment policy which is effectively implemented, monitored and communicated to all workplace participants.

  2. take appropriate remedial action if sexual harassment does occur.

Policies and procedures preventing harassment assist employers in maintaining positive workplace relationships and can improve employee motivation and performance.

In managing sexual harassment in the workplace, you may also have obligations under other laws, such as privacy, defamation, occupational health & safety and industrial laws.

Complaints procedures

Employers should establish internal procedures for dealing with sexual harassment complaints or grievances to enable in-house resolution. The Sex Discrimination Act does not prescribe any particular type of complaint procedure so employers have the flexibility to design a system that suits the organisation’s size, structure and resources.

As part of the legal responsibility to deal with sexual harassment, all employers must implement effective and accessible complaint procedures for employees and other workplace participants. A good complaint procedure:

  • conveys the message that the organisation takes sexual harassment seriously
  • can prevent escalation of a case and maintain positive workplace relationships
  • ensures that complaints are dealt with consistently and in a timely manner
  • reduces the likelihood of external agency involvement which can be time consuming, costly and damaging to public image
  • alerts an organisation to patterns of unacceptable conduct and highlights the need for prevention strategies in particular areas
  • reduces the risk of an employer being held liable under the Sex Discrimination Act and other anti-discrimination laws
  • can help to minimise the harm suffered by the person harassed
  • reduces the risk of the employer being held to have treated the alleged harasser unfairly, such as in an unfair dismissal claim.

As a guide, employers should ensure that their complaint procedures:

  • are clearly documented
  • are explained to all employees
  • offer both informal and formal options
  • address complaints in a manner which is fair, timely and confidential
  • are based on the principles of procedural fairness
  • are administered by trained personnel
  • provide clear guidance on internal investigation procedures and record keeping
  • advise a complainant that they can pursue the matter externally with the Australian Human Rights Commission, a state or territory anti-discrimination body or, if it appears to be a criminal matter, the police
  • give an undertaking that no employee will be victimised or disadvantaged for making a complaint
  • are regularly reviewed for effectiveness.


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  • by Harriet Stacey 26/03/2012 2:54:24 PM

    There are certainly some good points in this article, taking the mater seriously is very important for preventing future cases of sexual harassment in the workplace. One common error that can get organisations into difficulty is conducting a process that is directed by the complainant. This is fine if the conduct does not constitute a breach of OH&S legislation or the sex discrimination act but where the conduct complained of does breach legislation the organisation should conduct an independent investigation regardless of the views expressed by the complainant. Complainants often feel bad about the impact of their complaint and will minimise the serious with which they view the conduct - initially in any case. A failed grievance or 'insincere' apology can cause greater complaint later. If the organisation takes responsibility for it's actions there is less room for legal recourse later and in addition vexatious complaints are less likely to occur. At WiSE Workplace Investigations our training course help HR managers develop the investigation skills necessary to handle difficult cases of sexual harassment.

  • by Bernie Althofer 27/03/2012 9:45:02 AM

    Prevention and preventive actions seem to be underestimated in some organisations. In some cases, it appears that prevention extends as far as documenting and promoting a policy, coupled with training either online or face to face (time permitting).

    It seems to me that there are tremendous opportunities for organisations to extend their preventive and proactive work by practising for the day that they will have to respond to allegations. Individuals really don't like having to sit through a Court, Commission or Tribunal having to respond to a barrage of questions. Understanding the diverse range of questions that may arise should form the basis of 'mock' hearings. This provides individuals with an opportunity to learn how (or how not to respond).

    It is also important to address the workplace culture given that in some organisations there can be significant gaps between what the policy says and what really happens in the workplace. Getting workers at all levels to understand what sexual harassment looks like, the impact that it has on individuals and the organisation can help change the environment.

    In some cases it is important to work backwards. In other words, when you or organisation finds their name on the front page, backtracking can help identify where it all went wrong.

    I would also suggest that individuals and even organisations conduct self assessments to determine the frequency and severity of the behaviours, along with the actions taken. Establishing patterns of behaviours can be important. Self assessments also help individuals create a better understanding of what actually happened, who was present, and a raft of issues relating to their claim. It can also help reduce suggestions that a person has 'chopped and changed' their story. It can also help organisations identify improvement opportunities across a range of areas, not just in relation to the sexual harassment policy.

    I would also add that organisations should not underestimate the importance of assessments, reviews or audits to determine the success or otherwise of the implementation and understanding of their policy. After all, you want workers to be following the policy.

    I also recommend that organisations have systems or processes in place to maintain currency of knowledge regarding Court, Commission or Tribunal decisions regarding a range of counter productive behaviours including sexual harassment and unlawful discrimination. It is important that this currency of knowledge is then transferred to all workers so that they can meet current requirements.

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