Ignoring sexual harassment will only hurt you and the victim

Workplaces are increasingly expected to deal with alleged historical sexual harassment and their responses.

Disgraced actor Kevin Spacey. On workplace harrasment, ask yourself: ‘When you knew, what did you do?] Picture: AFP

At an end-of-year party, a friend of mine received an apology. A former colleague of hers walked intently across the room to seek her out and say sorry.

He was sorry, he said, that he didn’t do anything when she faced sexual harassment by their former boss. He was senior to her but not a direct manager. He said he was naive and unsure of his role, but fundamentally he knew he should have done something.

My friend hadn’t spoken to him in at least two years so was shocked that he was so strident in apologising, seeking to make amends. She was thankful and appreciated the sentiment, but told him that she’d had worse experiences than a sleazy boss. Even at this time of reckoning we are seeing, some workplaces don’t want to hear about sexual harassment

Workplaces increasingly are expected to deal with alleged historical sexual harassment and their responses. As is the case with many high-profile cases, former managers and executives will be called to account and questions will need to be answered. The most basic is: “When you knew, what did you do?”

The law is clear when it comes to management responsibility.

Kate Eastman tested the duty of managers and corporation on sexual harassment in a 2001 case in the Federal Court. Referring to the Sex Discrimination Act, she told me that on sexual harassment “employers have to be proactive and take preventive steps”.

Eastman, one of the nation’s top employment barristers, says employers have a duty to prevent harassment continuing.

“There is often a misconception that employers can act only if there is a complaint and the victim initiates or seeks to pursue a complaint,” she says. “The obligations under (the act) are not dependent on whether a complaint is made to the employer.”

Anthony Wood, a partner at Herbert Smith Freehills, agrees.

“Management has an overriding duty to protect the health and safety of its staff and others who may be impacted by the business’s operations, and in most jurisdictions employers have a positive duty to take reasonable and proportionate measures to eliminate sexual harassment,” Wood says.

He points to vicarious liability provisions that hold employers and staff jointly liable for unlawful conduct.

Too often the law seems like something that affects only the most senior people in our organisations and that internal processes already account for them.

On matters of sexual harassment, we all have a responsibility.

Unfortunately, it will be almost impossible to completely eradicate sexual harassment. There still will be cases that arise.

When they do, you have a duty to uphold the law.

You may not be at the centre of a case or even have a direct responsibility but, as my friend learned at Christmas, the morality of inaction will eat away at you.

Conrad Liveris is a corporate adviser on workplaces and risk.