By Alex Millman and Victoria Hansen, NRA Legal
In June this year, Sex Discrimination Commissioner Kate Jenkins launched a dedicated national inquiry into sexual harassment in the workplace, conducted by the Australian Human Rights Commission (AHRC).
This Inquiry coincides with the AHRC’s Fourth National Survey into Workplace Sexual Harassment, which has been run every five years since 2003.
Although the Inquiry will continue to consult with the public up until January next year, the results of the Survey were released early last month, and they paint a disturbing picture of Australian workplaces.
The figures – incidence of sexual harassment
The Commission surveyed 10,000 workers in Australia to determine the prevalence of sexual harassment in Australian workplaces, and the key characteristics of the victims and perpetrators of sexual harassment and the workplaces where sexual harassment is most likely to occur. For the full survey report, click here.
The Survey showed that both men and women continue to be affected by sexual harassment, with one-third of all workers surveyed reporting that they had been sexually harassed at work in the last five years.
The issue of sexual harassment continues to be a highly gendered issue, however the gap is closing – the proportion of women reporting sexual harassment more than doubled from 15% to 39% between 2003 and 2018, whilst the proportion of men reporting sexual harassment more than quadrupled from 6% in 2003 to 26% in 2018.
Younger people aged 18 to 29 were more likely to be the victims of sexual harassment, with 45% of respondents in this age group reporting some form of sexual harassment in the workplace.
People who identified as heterosexual were less likely to be the victim of sexual harassment (31%), compared to people who identify as homosexual (47%), bisexual (57%), or people who identify as another form of sexual orientation (55%).
People who identified as Aboriginal or Torres Strait Islander were more likely to have experienced sexual harassment (53%) compared to those who did not (32%)
Most unfortunately, however, the retail industry was one of the worst offenders, with 42% of respondents in the retail sector reporting sexual harassment of some kind. Of these, 50% of victims were women and 32% of victims were men. In 84% of cases in the retail industry, the perpetrator was male.
 The remaining 18% of respondents in the retail sector who had reported sexual harassment did not disclose a gender.
The figures – reporting sexual harassment and organisational response
The Survey was concerned not just with when and how sexual harassment occurs in the workplace, but also about how it was dealt with by the victim and their employer.
Only 17% of respondents who reported experiencing sexual harassment in the workplace reported the conduct to someone within their organisation.
Victims were more likely to report situations where there was definitive proof readily available, such as sexually explicit emails, text messages or social media messages; although these comprised only 2% of sexual harassment experienced, 32% of these cases were reported. Cases where there would inevitably be an element of ‘he said, she said’ were significantly less likely to be reported.
Victims made formal reports to their direct managers in 55% of cases, with women more likely to make such a complaint (60%) than men (47%).
However, men were more likely than women to make a complaint direct to their boss or senior management (40% men compared to 34% women), the HR Manager or equivalent (28% men compared to 22% women) or an equity or sexual harassment contact officer (14% men compared to 5% women).
Most worryingly, however, 43% of people who made a complaint about sexual harassment reported experiencing negative consequences as a result.
Harassment was more likely to stop following a complaint for women than men (48% compared to 37%), and women were more likely to receive an apology from their employer than men for the situation arising (23% compared to 15%). Men were more likely to receive ‘no consequences’ (9% compared to 22% of women), but where there were negative consequences were more likely to be disciplined (20% compared to 5%) or sacked (10% compared to 6%).
What does this mean?
This means that despite the increased spotlight on sexual harassment in the workplace thanks to the #MeToo movement, Australian workplaces still have a long way to go.
It is important for employers to understand that sexual harassment is a lot more than indecent exposure or sexually explicit emails – it includes lewd comments, jokes, inappropriate questions about a person’s private life, leering, or uncomfortable physical proximity or contact.
Those who will be called upon to respond to these kinds of complaints need to appreciate that these forms of sexual harassment will likely be difficult to pin down, as it is a balancing act to weigh up the balance of evidence. These managers should receive dedicated training in how to handle these difficult and sometimes volatile conversations.
It is especially important that your employees feel able to report sexual harassment without fear of negative consequences except in the most egregious of cases. Naturally vexatious complaints which are an abuse of process should not be tolerated, but an open mind is a must as nipping lower-level behaviours in the bud is sometimes the most effective method of preventing a negative culture pervading the workplace.
How NRA can help
NRA is consulting with our members to develop written submissions to the AHRC’s Inquiry; to find out how you can contribute, please email us at firstname.lastname@example.org.
With Christmas just around the corner, and work Christmas parties being notorious for drunken antics and sexual harassment, now is the time to update and remind all employees of your policies and procedures, particularly in relation to sexual harassment.
The NRA are conducting “Silly Season” webinars, free for members, the second of which deals with employees and Christmas parties. Be sure to sign up so you don’t miss out. Details can be found at https://www.nra.net.au/events/silly-season-webinars/
The legal team at NRA are also well equipped and experienced to provide policies and procedures and training in relation to sexual harassment or to conduct workplace investigations for its members on a fee for service basis. Please contact a member of the team today if you wish to discuss.
To find out more information and speak to one of our workplace advisors, call the NRA today on 1800 RETAIL (738 245).