Prevention is better than the cure – further reform needed to sexual harassment laws

There was an air of inevitability, and relief, about the Morrison Government’s decision on 8 April to embrace Sex Discrimination Commissioner Kate Jenkins’ 2020 Respect@Work report, nearly six weeks after Brittany Higgins first alleged being raped in Parliament House.

The government “agreed … in full, in principle, or in part” to many of the 55 recommendations, but only “noted” the most important: a positive duty on employers to take reasonable and proportionate steps to eliminate sexual harassment in the workplace.

That omission is significant – it demonstrates a failure to grasp the origin of the current scandals and the need to shift Australia’s sexual harassment laws onto a preventative, rather than reactive, footing.

The incidence of sexual harassment in Australian workplaces is appalling.

The Respect@Work report considered the latest of four national surveys undertaken by the commission since 2003, demonstrating that reported sexual harassment has increased over time: 11 per cent of the workforce experienced sexual harassment in 2003, increasing to 33 per cent in 2018, representing 39 per cent of women and 26 per cent of men.

Despite likely trends towards greater disclosure, our sexual harassment laws are not working.

The Sex Discrimination Act 1984 (Cth) took the first steps of defining sexual harassment and making employers vicariously liable for harassment by employees (at common law, employers were not responsible for unlawful acts by employees, characterised as “frolics of their own”).

While the definition of sexual harassment has evolved, it is now generally recognised as fit-for-purpose, being unwelcome sexual conduct that a reasonable person would expect would be harassing, considering the subjective characteristics of the person concerned, such as age, gender, relative power within the workplace etc.

The duty imposed on employers to prevent such conduct remains unchanged since 1984. Under existing laws, employers will not be vicariously liable if they “took all reasonable steps” to prevent sexual harassment from occurring. This creates an essentially negative duty for employers to avoid liability, rather than a positive obligation to prevent sexual harassment from occurring.

In practice, this means that many employers never turn their minds to preventing sexual harassment until it happens. It also obliges workers to report sexual harassment, after which employers usually scramble to respond with an investigation and possible disciplinary action against the perpetrator, refresh their sexual harassment policy (if any) and roll out some generic training.

By that time, the damage is done – the victim has suffered psychological (and possibly physical) injuries, employment relationships may be ruptured and prospects diminished, especially if allegations are made public. Accordingly, most workers never report sexual harassment (only 17 per cent make a formal complaint).

The scandals in Parliament House, or for that matter the High Court, are cases-in-point: but for the complaints by Brittany Higgins and former associates to Justice Dyson Heydon, neither institution would have reviewed whether it had appropriate systems in place to prevent sexual harassment from occurring.

To redress the lethargic and patchwork nature of such reactive change, Jenkins recommended legislative amendments to “shift … to a proactive model”.

The government adopted some of those proposals, including the Fair Work Commission issuing “‘stop sexual harassment orders” (in the face of employer inaction) and imposing accessorial liability on any individual that “causes, instructs, induces, aids or permits” another person to engage in sexual harassment, which will sharpen executives’ minds when managing sexual harassment.

However, the government has not yet accepted the proposal of an express, positive duty in the Sex Discrimination Act for employers to take reasonable and proportionate steps to eliminate sexual harassment in the workplace, enforced by the commission.

The government argued that safety laws already oblige employers to provide a safe workplace environment, including eliminating sexual harassment and mooting concern about “creat[ing] further complexity, uncertainty or duplication” (read: red-tape).

That’s difficult to accept at face value, given a positive duty has been in place under safety laws since the late 1970s, yet patterns of sexual harassment endure.

The government’s real concern appears to be either mission-creep by the commission, a fond target in culture wars, or misplaced concern about burdening business.

Safety in the workplace is impacted not only by sexual harassment but also by criminal acts against the person, invasions of property and privacy etc. Such matters are not the sole remit of safety regulators – they are enforced by specialist institutions. Indeed, giving safety regulators a primary role in regulating sexual harassment is likely to create more, rather than less, confusion – most workers understand the commission to be the forum for sexual harassment complaints, which is also better equipped to administer sexual harassment laws.

Nevertheless, work health and safety laws do provide a useful analogy.

The decades-old imposition of a legislated positive duty to provide a safe workplace environment, replacing the reactive duty of care at common law, means most employers have formal safety policies and procedures in place, furnished by an entire industry of consultant professionals, even in the absence of having ever had a safety incident.

Imagine if the same could be said about the management of sexual harassment – employees might then be respected at work, without having to implement that change for themselves – employers would do it for them.