Leadership buy-in necessary for a speak-up culture against sexual discrimination

Since last December, organisations and businesses have had a positive duty to eliminate sexual harassment and discrimination in the workplace as per the Sex Discrimination Act. In a strengthening of its regulatory powers, the Australian Human Rights Commission will also hold new powers to investigate and enforce compliance with the positive duty from December 12, 2023.

This is a significant change for organisations as the Commission has rarely held enforcement powers, giving senior leaders one more thing to consider when responding to and eliminating sexual discrimination and harassment.

Key points

• As per the Commission, the new positive duty requires organisations and businesses to take ‘reasonable and proportionate measures’ to eliminate, as far as possible
• Sex discrimination is when someone is treated unfairly or is unreasonably disadvantaged because of their sex, or a characteristic generally associated with people of their sex
• Sexual harassment is any unwelcome conduct of a sexual nature in which a reasonable person would anticipate the person being harassed might feel offended, humiliated or intimidated
• Four Guiding Principles and seven Standards support the positive duty, providing additional insights into what organisations must take into account

Speaking to HRNews, Aaron Goonrey, Partner at Pinsent Masons, offered deeper insights into what employers need to be aware of when looking at the guidelines provided by the Commission. In a similar theme to the best practices in aged care, he said a holistic approach to implementing and managing positive duty will be more effective than just a policy-based approach. 

“Employers should be looking at what their current state of play is in relation to the positive duty, in relation to what they’re doing to eliminate and prevent sexual harassment from occurring… and they should be looking at what they can be doing in the future,” Mr Goonrey said.

“That is, what are they doing not just from a policy or training perspective, but what are they doing to incentivise good behaviour as well as taking appropriate action to address behaviours that are aberrant and contrary to the positive duty.”

Perhaps most importantly, Mr Goonrey pointed out that the positive duty to eliminate sexual harassment and discrimination in the workplace means organisations and businesses need to look at it from a health and safety perspective, rather than just workplace discrimination law.

Encouraging staff to speak up

One of the ongoing challenges in workplaces is encouraging staff to speak up or report incidents of sexual discrimination, harassment or assault. Just 18% of people who have experienced some form of workplace sexual harassment have made a formal complaint, while only 33% of those who witness an incident intervene or report what occurred.

“What will happen is there is an automatic assumption that either someone will be dismissed, as in that their complaint will be dismissed… they’ll either be marginalised or victimised because they’ve spoken up, or their complaint will be investigated and they don’t necessarily want an investigation because they’re not sure of what the outcome will be,” he said.

Mr Goonrey also said a ‘speak-up culture’ is one of the toughest things to promote in the workplace due to a lack of information about what happens once a complaint is raised. So, what should employers do to encourage a positive workplace culture where staff can speak to human resources or a trusted manager when something serious occurs?

Senior leadership buy-in is critical as leaders must be the ones promoting, endorsing and supporting positive duty. But leaders must also remember the people at the centre of the complaints, not just the policy or guidelines you need to adhere to.

“My key message would be not to overthink this and to put yourself in the position of an employee who may have a complaint or a grievance in relation to any type of inappropriate behaviour, but particularly in relation to sexual harassment and think about, if that was me, what would I need to know and what would make me comfortable in coming forward?” Mr Goonrey said.

“In terms of complying with the positive duty, [it’s] doing things that many employers already are doing but emphasising it, and bringing it to senior leaders’ attention, that that you do have a positive duty as an employer, are required to do certain things, and you should be educated, trained, and aware of the various processes and procedures that you have as an organisation.”