The standard you walk past is the standard you are liable for

The recent sex discrimination and harassment scandals rocking the Australian Defence Force have left Lisa Croxford wondering if managers are aware that the behavioural standards they walk past are the same standards they are personally held accountable for.

The standard you walk past is the standard you are liable for

The recent sex discrimination and harassment scandals rocking the Australian Defence Force have left Lisa Croxford wondering if managers are aware that the behavioural standards they walk past are the same standards they are personally held accountable for.

“The standard you walk past is the standard you accept, that goes for all of us, but especially those who have a leadership rank”. So said Lieutenant General Morrison in a recorded speech (now on YouTube) in response to the Australian Defence Force’s current scandal.

What some managers are unaware of is the standard you walk past is also the standard you are personally liable for. Under a number of Australian anti-discrimination laws – the federal Sex Discrimination Act and the Victorian Equal Opportunity Act to name two –accessory liability is imposed on those who request, instruct, induce, encourage, authorise or assist the unlawful behaviour of others. Managers can be found personally liable and a damages award made.

The reach of these provisions is largely untested by our courts, but this is not through lack of trying. We have defended numerous cases where accessory liability is argued by complainants. The fact the cases have not proceeded to full hearing is as a result of the huge pressure placed on organisations to come to a commercial settlement of claims like these – or risk adverse publicity like the type experienced by the ADF.

Lieutenant General Morrison’s speech is an example of outstanding leadership that has turned an overwhelmingly bad news story into a public relations success. It demonstrates a zero tolerance policy to unacceptable behaviour in the workplace. It encourages everyone in the ADF to stand up and call bad behaviour. It is a standard that we should all aim towards.

In our practice, we have seen managers copied on emails containing pornographic material, managers being present when racist comments or ‘jokes’ are made, managers who tolerate a direct report’s ‘playboy’ reputation with staff. We have seen them because those managers have failed to act.

What standard have you walked past recently?

About the author 

Lisa Croxford is Special Counsel, Herbert Smith Freehills

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