Against the background of the #MeToo movement, the Australian Human Rights Commission (AHRC) has launched a 12-month national inquiry into sexual harassment in the workplace. The world-first inquiry is now accepting submissions and will hold public consultations across Australia later in 2018.
The AHRC has also just released the results of its fourth national survey on sexual harassment in Australian workplaces. These results confirm the pressing need for the holding of the inquiry, and highlight significant systemic issues for employers to address.
The inquiry will be accepting submissions until 31 January 2019, and will aim to hear from a broad range of employees, employers and members of the public across Australia. The inquiry will:
- examine the drivers of workplace sexual harassment;
- review existing preventative and responsive measures in place; and, ultimately
- make recommendations to address sexual harassment in Australian workplaces.
See here for the full terms of reference for the inquiry. Submissions will be accepted until 31 January 2019.
The survey focused on the prevalence, nature and reporting of sexual harassment in the workplace. The 2018 survey marks the highest ever number of respondents with over 10,000 Australians surveyed. It includes:
- data regarding the prevalence of sexual harassment in the workplace;
- its perpetrators and victims;
- the sectors or industries where it occurs; and
- the incidence and consequences of making formal complaints.
Key survey findings
The survey data reveals that the current situation of workplace sexual harassment in Australia is a cause for major concern. This is particularly evident when the results are compared with those of the previous 2012 survey. Of note, key findings from the 2018 survey show:
- an increase in the prevalence of sexual harassment in the workplace, with 51% of Australians who have been in the workforce in the last five years experiencing sexual harassment as a victim and/or bystander;
- women, 18–29 year olds, those who identify as LGBTIQ+, Aboriginal and Torres Strait Islanders, and people with a disability are more likely to be affected;
- the vast majority (83%) of incidents of sexual harassment in the workplace went unreported (an increase since the last survey);
- two in five victims experienced some form of negative consequence as a result of reporting an incident;
- an increase in the number of witnesses to sexual harassment in the workplace, (although this is coupled with a decrease in witnesses taking any action in response); and
- the most frequent kinds of sexual harassment are those least likely to be reported.
What do the AHRC survey results mean for employers?
The results highlight that sexual harassment within Australian workplaces is widespread and systemic. This suggests we have still not reached the point where steps to prevent it within workplaces are being effective.
In circumstances where we are well past the point where a victim’s testimony must be taken more seriously, there is a high expectation that employers will diligently discharge their responsibility to investigate their workplace culture and any complaints but also that they will take all practicable steps adequately to prevent and respond to sexual harassment.
A year after the #MeToo movement started following the exposure of Harvey Weinstein as a sexual predator, the extremely low rates of reporting sexual harassment remain disappointing. We remain of the view that the AHRC’s inquiry, together with the enduring strength of the #MeToo movement, will lead to greater reporting.
This in turn will place increasing pressure on organisations to ensure they have an effective reporting system in place that manages complaints promptly and with sensitivity and produces appropriate outcomes. In our view this will be a serious reputational risk for employers as the appetite for change is profound. Policy and process will be of lesser effect in changing behaviours if an environment within which victims feel safe and supported in making a formal complaint is not fostered at the broader cultural level.
The survey results demonstrate the continuation of the serious problem of negative repercussions for victims after they have made a complaint. Some of the most common reasons given in the survey for not reporting an incident were that the victim thought they would be perceived as ‘overreacting’ or that the sexual harassment was ‘not serious enough’.
Troublingly, a common reason offered for this perception was that the behaviour in question was seen by the victim as ‘commonplace or an accepted part of their job or industry’. Sadly, this reflects the known concern that for too long suspicions are turned on to the victim and they are smeared. Such outcomes are of course a deterrent to reporting. Decreased rates of reporting can therefore be partly explained by fears of being labelled a ‘trouble-maker’, or being ostracised and victimised by colleagues.
We encourage employers to be honest and aware that there can be a gap between rhetoric and reality. We believe employers will be under growing pressure to create environments in which victims are not held back or discouraged from raising experiences of sexual harassment by such fears. This should also extend to witnesses/bystanders to the harassment, so as to encourage their response and action.
This highlights the importance of education, training and policies in relation to acceptable behaviours in the workplace, particularly with respect to sexual harassment. Education and training should be implemented at all levels of the workplace so that employees and managers alike are aware of what constitutes sexual harassment.
It should also be made clear within every business and workplace which behaviours are not to be tolerated and should accordingly be reported. As we outlined above, the survey demonstrates that the most frequent types of sexual harassment (e.g. sexually suggestive comments or jokes, which represented 31% of the most recent incidents reported in the survey) tended to be the least likely to be reported. This suggests that these frequent ‘lower level’ incidences of sexual harassment are often considered not serious enough to be worthy of reporting.
Clearly, more needs to be done by workplaces to ensure that all occurrences of sexual harassment—regardless of their level of severity—are taken seriously.
Looking forward: the inquiry, its implications and next steps
In releasing the survey results, Sex Discrimination Commissioner Kate Jenkins speculated on whether the measured increase in the prevalence of workplace sexual harassment may be a reflection of a growing awareness and understanding of sexual harassment more broadly – especially given the rise of the #MeToo phenomenon globally.
In light of the AHRC’s fourth national survey, it is undeniable that sexual harassment in the workplace remains a significant problem in Australia. As the AHRC’s inquiry continues into 2019, employers should be prepared and anticipate the implications and likely recommendations of the inquiry.
While there are no submissions currently publicly available, based upon the results of the survey and findings from previous AHRC reports into sexual harassment, possible recommendations resulting from the inquiry may encourage or require employers to take the following practical steps:
- improve awareness within the workplace about reporting and complaints processes for allegations of sexual harassment;
- develop and implement preliminary prevention strategies, such as sexual harassment training;
- implement workplace mechanisms to protect against detrimental consequences of making complaints;
- provide workplace training, so workers are equipped to provide support and advice to victims of sexual harassment;
- develop measures to change attitudes and behaviours that drive sexual harassment;
- put in place strong leadership and governance structures that demonstrate a visible commitment to addressing and preventing sexual harassment in the workplace;
- create monitoring and evaluation processes;
- provide secondary prevention strategies, such as processes to address the risk of victimisation through effective reporting processes; and
- provide tertiary prevention strategies to encourage bystanders to prevent or reduce harm resulting from sexual harassment.
At a deeper cultural level, we consider that businesses should now be bearing the following issues strongly in mind:
- Understanding the brand and investment risks attached to allegations of sexual harassment within an organisation, especially where the allegations involve executives or other senior personnel.
- Appreciating that the number of legal proceedings based on gender or sexual harassment claims is rising.
- The cultural and other dynamics which pre-dispose organisations to higher levels of harassment/discriminatory behaviour. Are there ways in which teams operate, or are incentivised, which could be problematic (e.g. ultra-competitive incentive structures or targets that fuel aggressive character traits)?
- Codes of conduct and other attempts to regulate behaviour. How far should an organisation intervene in personal relationships between co-workers? A balance has to be struck between appropriately managing issues arising from these relationships (e.g. potential for conflicts of interest within teams, the workplace consequences of relationships breaking down) and allowing adult employees/managers to make their own personal decisions.
- How corporate responses to historic sexual harassment fit within a broader proactive approach to diversity and inclusion. The #MeToo movement is not simply about sex, it is as much about power and how that is shared within organisations. For this reason, the way in which your organisation addresses diversity and inclusion, flexibility and gender pay equality is directly relevant.
 Australian Human Rights Commission, ‘World-first national inquiry into workplace sexual harassment’, 20 June 2018.
 Australian Human Rights Commission, ‘Everyone’s Business: 2018 Sexual Harassment Survey’, 12 September 2013.
 Australian Human Rights Commission, ‘World-first national inquiry into workplace sexual harassment’, 20 June 2018.
 Australian Human Rights Commission, Everyone’s business: Fourth national survey on sexual harassment in Australian workplaces, 2018, 5.
 For the full list of data collected through the survey see Australian Human Rights Commission, Everyone’s business: Fourth national survey on sexual harassment in Australian workplaces, 2018, 7.
 Australian Human Rights Commission, Everyone’s business: Fourth national survey on sexual harassment in Australian workplaces, 2018.
 Australian Human Rights Commission, ‘Working without fear: Results of the sexual harassment national telephone survey’, 2012, page 56; Australian Human Rights Commission, ‘Change the course: National report on sexual assault and sexual harassment at Australian universities’, 2017, page 168; Australian Human Rights Commission, ‘Ending workplace sexual harassment: a resource for small, medium and large employers’, 2014, pages 29-35.
This publication is introductory in nature. Its content is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this publication. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.