In December 2023, Australia implemented significant changes to the Sex Discrimination Act 1984, mandating that all business owners, regardless of their size, take “reasonable and proportionate measures” to “eliminate sexual harassment and related harms”.
Whilst every business owner is obliged to act, the new law doesn’t prescribe a ‘one size fits all’ approach. Instead, it allows business leaders to determine what is “reasonable and proportionate” regarding its size, nature and available resources.
Businesses must eliminate behaviours that meet the following legal criteria for sexual harassment:
- The conduct must be “unwelcome”, distinguishing it from consensual interactions such as mutual flirtation or romance.
- The behaviour must also be “sexual” in nature, including leering, sexualised banter, touching another person’s body, displaying pornography, sharing suggestive images by text, repeated requests for a date or forcing another person to perform sexual acts, etc.
- The behaviour must be perpetrated in circumstances where a reasonable person would foresee the “possibility” that another person would feel intimated, offended or humiliated, regardless of the perpetrator’s intent.
Guiding framework
The Australian Human Rights Commission (AHRC) has issued a framework of seven standards to help employers, including small business owners with limited resources and manpower, create ’reasonable and proportionate’ strategies:
Leadership: Leaders must set the cultural tone and standards for eliminating sexual harassment. They must also identify physical and psychosocial risks and respond promptly to incidents with wisdom, empathy, and procedural fairness.
Culture– People often refer to cultural rhythm as “the way we do things around here” and this requires watchful leadership to ensure that it remains safe, respectful, and inclusive.
Knowledge: Employees need clear, tailored sexual harassment policies and regular opportunities for training, discussion and skills-development. The practical translation of the policy into the hearts and minds of employees is essential.
Risk Management: Leaders must actively assess and monitor the workplace for physical and psychosocial risks to ensure the safety and wellbeing of all their employees. Special proactive measures may be needed for relative isolation, gender ratio or any history of hostile workplace culture.
Support: Workers should be empowered to speak openly on sexual harassment. This requires equipping them with tools for clear, confident conversations, especially where sexual harassment is witnessed or experienced. Clear avenues for disclosure to trusted supervisors should be set out in the policy.
Reporting: Leaders should respond empathetically by listening to understand the details and associated feelings. Establishing principles of confidentiality, timeliness and ‘next steps’ with the employee is crucial while ensuring procedural fairness for all parties involved.
Monitoring, evaluation and transparency: Leaders must continually assess the effectiveness of the steps taken under the above framework, aiming to empower staff with the knowledge, skills and spirit to create and maintain a safe, healthy working environment.
Importantly, where a workplace sexual harassment complaint proceeds to litigation, the Court would likely consider the extent to which the business adopted these guidelines towards eliminating sexual harassment.
The risk of non-compliance
Before December 2023, employers could be held vicariously liable for sexual harassment only if a complaint reached court. This liability still stands, potentially resulting in significant financial consequences. The Australian Human Rights Commission can investigate the ‘reasonable and proportionate measures’ taken by individual businesses to eliminate sexual harassment and related harm and enforce compliance through court notices. Non-compliance may also hurt a business’s culture, reputation and its bottom line.
The opportunity ahead
Small-business owners must set cultural standards and lead with empathy and conviction. We are all deserving and entitled to basic standards of dignity, respect and safety in the workplace, no matter its size.
The new ‘positive duty’ law not only protects those standards but requires that employers bring conscious awareness to eliminating sexual harassment for the greater wellbeing of their employees.
