Unsolicited kiss at Women's World Cup a reminder of employers' 'positive duty'

It'll be a question of 'How did you let this happen in the first place?' says employment lawyer discussing aftermath of harassment – and how to be preventive

Unsolicited kiss at Women's World Cup a reminder of employers' 'positive duty'

The president of the Spanish football federation recently made headlines for the wrong reasons after planting an unsolicited kiss on the lips of a team member during celebrations for the Women’s World Cup.

Luis Rubiales apologised afterwards, saying he’d been caught up in the ‘huge joy’ of the win, but also refused to resign (as of this writing) and called the backlash “social assassination.”

The case highlights the need for change in the workplace around the issue of sexual harassment, says Mitch Robertson, Special Counsel at DLA Piper.  

“In Australia, the laws have been expanded such that employers have a positive duty to take reasonable and proportionate measures to eliminate sexual harassment in their business.”

Focus on actively preventing unlawful conduct, harassment

Following changes to the Sex Discrimination Act in December 2022, organisations are required to focus on actively preventing unlawful conduct connected to work, rather than responding only after it occurs. From December 2023, the Australian Human Rights Commission will also have new regulatory powers to ensure organisations are meeting the new requirements.   

“This case study with the Spanish football federation president represents that dealing with [an event] after it’s occurred is too little too late, because the focus will not just be on what has occurred, but why steps weren’t taken beforehand to stop something like this from occurring,” says Robertson.

Addressing this change won’t be a ‘one size fits all,’ he says, but rather something organisations will need to tailor to their specific business.

Organisations should consider whether they have the right governance frameworks and structures in place to prevent sexual harassment – for instance, ascertaining whether the right policy is in place with appropriate resources and processes, says Robertson.

Employers ‘have to grapple with change in mindset to being proactive’

It’s also important to consider the extent of people’s knowledge - whether employees understand what sexual harassment is, what’s appropriate conduct, and what they need to do if they see it.

“It won't just simply be about how employers deal with a case afterwards, it'll be a question of ‘How did you let this happen in the first place?’” says Robertson. “Organizations are going to have to grapple with a change in mindset to being proactive.”

Culture is key, he says.

“For instance, do you rank your employees in performance reviews based on them contributing to a safe, respectful and inclusive culture? Are workers accountable for a positive culture?”

Transparency is important too, says Robertson, in terms of talking to workers about what steps the organisation will take, seeking their input and understanding how measures will be assessed and reported, with an emphasis on preventing incidents from occurring.

“The question as to what is appropriate and how you address it will be particular to each organization,” he says. “And you've really got to look and think hard about those instances where these things could arise – such as having reminders before social events.”

‘Right kind of culture, knowledge’ needed to prevent sexual harassment

For instance, if a sales team regularly has post-success celebrations - similar to the excitement seen at a sporting event - an organisation should do what it can to eliminate the chance that something will occur, as far as reasonably practicable.

In a case like the one at the World Cup, it might be appropriate for a manager or leader to bring people together beforehand and say, “Hey, I just want to remind everyone, this is acceptable, this is not acceptable,” says Robertson.

The challenge will be to take these steps in such a way that it resonates with employees and creates the right cultural environment to promote change.

“That comes from really having embedded into the organization the right kind of culture, the right kind of knowledge,” he says.

“If steps are taken to prevent sexual harassment from occurring, that's a good outcome for everyone.

“This is an opportunity for organizations to help their employees better understand what’s expected of them and also to become champions of a culture which is respectful, safe and inclusive.”

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