Guidelines for Employers Eliminating Sexual Harassment

Under the Anti-Discrimination Act: Unwelcome and uninvited sexual conduct is unlawful in the workplace. Employers need to deal with sexual harassment as a management issue.

These guidelines are intended to assist employers in their task of eliminating this conduct in the workplace. They aim to provide an understanding of the nature of sexual harassment, to suggest appropriate methods of preventing it and suitable procedures for dealing with it when it occurs.

The Northern Territory Anti-Discrimination Act makes sexual harassment unlawful in the areas of:

• education
• work
• accommodation
• goods, services and facilities
• clubs
• insurance and superannuation

These guidelines deal with sexual harassment in the workplace. Sexual harassment complaints differ from other staff complaints. Allegations of harassment arouse strong emotion and if a claim is found to be true, serious consequences can follow. Investigation of complaints must be confidential and impartial.

Someone who has been harassed can make a complaint to the Anti-Discrimination Commission. Many unions have also adopted a positive policy to stop sexual harassment and may be able to assist in resolving complaints.

Sexual Harassment takes place if a person:

• subjects another person to an unwelcome act of physical intimacy
• makes an unwelcome demand or request (whether directly or by implication) for sexual favours from another person,
• makes an unwelcome remark with sexual connotations
• engages in any other unwelcome conduct of a sexual nature.

... and does so with the intention of offending, humiliating or intimidating the other person, and a reasonable person would have anticipated such consequences.

It is sexual harassment if a supervisor requests sexual favours from a junior in return for promotion or other benefits or threatens the sack for non-cooperation.

It is also sexual harassment for a boss to make intrusive inquiries into the private lives of employees, or persistently ask them out.

It is sexual harassment for a group of workers to joke and snigger amongst themselves about sexual conduct in an attempt to humiliate or embarrass another person.

What is not Sexual Harassment ?

It is not sexual harassment to develop friendships (sexual or otherwise) with other workers where both persons consent. Management has no concern with the private lives of staff unless misconduct starts affecting the workplace.

Preventing Sexual Harassment is a Management Responsibility

As an employer you have a legal responsibility to ensure your workplace is free from sexual harassment. Generally speaking, an employer can be vicariously liable for certain acts of sexual harassment, or alternatively liable for sex discrimination by not dealing with sexual harassment. The productivity and efficiency of your company will also be enhanced when your workplaces are free from harassment.

If harassment is allowed to go unchecked, the employer has failed to adequately regulate what happens on the job by directing the management or shop floor supervisors or foremen to ensure that appropriate standards of behaviour are encouraged. Unchecked sexual harassment can lead to -

• Lower productivity and poor quality work due to the fact that employees minds aren't on the job
• Low staff morale and increased absenteeism
• An unnecessary increase in stress levels of staff
• Accidents due to distractions
• Resignations
• Expensive and lengthy legal proceedings

As an employer you can take positive steps to prevent sexual harassment at your workplace. You will need to inform your employees what harassment is, and establish processes by which complaints are received, investigated and resolved.

Workplace Harassment

Women are usually the object of sexual harassment, just as they usually suffer other forms of sex discrimination. Most women have less power than men, hold jobs at lower levels or jobs which are less well paid. Their employers and supervisors are mostly men.

Because of this, most sexual harassment in the workplace is not complained about and therefore remains hidden. Although people may assume that such behaviour is just "normal" and all in good fun, it may be deeply distressing to its victims. Women often don't complain because they feel it isn't right to "rock the boat" or that, even if they do complain, no-one will take them seriously. If the behaviour persists, it may be difficult for the person being harassed to stop it other than by taking a drastic step such as resigning.

Where the harasser is an employer or a person in line management, women are even less likely to complain since that person may also have the power to fire them or influence their employment prospects in other ways.

If a woman sexually harasses a man, or if someone harasses a person of the same sex, that is also unlawful discrimination.

Anti-Discrimination Commission Complaints

Complaints may be settled at the workplace. However, employees who have been sexually harassed at work have the right to make a complaint to the NT Anti-Discrimination Commission. Employers can also contact the Commission to request advice on their legal obligations under the Act.

Where a sexual harassment complaint is received by the Commission, it is investigated confidentially and a member of the Commission's staff will attempt, with the cooperation of the parties involved, to conciliate the dispute. The conciliation officer does not take sides but is there to assist in finding a settlement agreeable to both parties.

An unresolved complaint may be referred to the Anti-Discrimination Commissioner for a hearing. The Commissioner can make orders which are enforceable through the court. There are penalties for victimisation of a complainant or witnesses involved in the investigation.

The Work Environment

It is unlawful to dismiss an employee or to deny or restrict their opportunities or benefits because they have been harassed and failed to comply with unwanted advances. Complainants need not necessarily show that they have been disadvantaged in some concrete sense, eg, that they have missed a promotion or been denied overtime. It is sufficient that their general working environment has become intolerable.

The harassment may be in the form of a threat or an implication that, if the employee does not comply, that person's job prospects will be adversely affected. It does not matter whether the person harassing carried out these threats or not. If employees feel their job or job benefits depend on accepting unwanted sexual attentions, sexual harassment has occurred.

Steps to implementing a system to prevent sexual harassment

You should be aware that the investigation and resolution of sexual harassment complaints involve some serious privacy issues. You will minimise repercussions among your employees if you take extra care not to violate people's privacy by allowing rumours to spread.

Information on the allegations should only be accessible to people whose job it is to deal with complaints. If this basic rule is ignored you may be inviting a defamation suit from the alleged harasser who may claim their reputation has been damaged by information being spread about them.

Keeping written records should only be the minimum steps taken to establish the facts. All documents must be kept secure.

Action must be based on confidential and impartial investigation. Resolution should be appropriate to the severity of the offence and the conditions of employment in your company.

1. Issue a Policy Statement

Make a clear statement to all employees which should include:

• sexual harassment will not be tolerated under any circumstances;
• outline what sexual harassment is, how it can affect the working environment, and what can be done to prevent it;
• sexual harassment at work is unlawful under the Anti-Discrimination Act. Any employee has the right to bring complaints about sexual harassment to the Anti-Discrimination Commission for confidential conciliation or a public hearing if necessary;
• the company will treat harassment complaints seriously and sympathetically;
• what the correct procedures are in bringing complaints to the attention of management;
• complaints will be investigated impartially;
• complaints will be attended to promptly and confidentially;
• that action will be taken to ensure that misconduct does not continue;
• the name, position, location and phone number of people nominated to receive complaints. If you employ a large number of staff, also name a person 'at the top' for appeals;
• that any employee who does not wish to use these procedures or is dissatisfied with them may contact:
• their union or union representative
• the Anti-Discrimination Commission

2. Raise Awareness

Make sure that your staff are aware of their responsibilities under the law. Inform them of the correct procedure to follow if they have a complaint. You can:

• raise the matter at staff seminars or meetings or at a sexual harassment training session
• raise this issue yourself at appropriate meetings
• provide all staff with appropriate literature

3. Make the Policy Statement Visible

Ensure the policy statement is seen by all employees. You can:

• distribute it to all new employees as part of their induction
• include a copy in staff pay packets
• display copies on appropriate noticeboards

4. Appoint a Complaints Officer

Nominate one of your employees to receive sexual harassment complaints. Demonstrate your company's commitment to eliminating sexual harassment by appointing someone senior enough to have authority to investigate and resolve complaints.

Publicise the appointment of the complaints officer throughout the company.

Draw up, endorse and use a set of written guidelines for investigation and resolution of complaints.

Role of the complaints Officer

This person should be aware that dealing with sexual harassment is not like any other type of office dispute.

Complainants may often be embarrassed and distressed and this person will be called upon to exercise great tact and discretion.

Despite the difficulties some people may have in talking about sexual conduct it is important to get a clear description of the incident in simple and direct language. Attempts at subtlety may only lead to confusion as to what actually occurred. Here are some suggestions about how to receive and investigate complaints and how to arrive at a satisfactory resolution.

5. Receiving a Complaint

• Impartiality is essential. Do not prejudge the matter.
• Listen to the complainant seriously and sympathetically.
• Take accurate notes, using the complainant's own words where possible.
• Get a broad outline of the grievance, then a step-by-step account.
• Check all details with the complainant and explain the various courses of action available.
• Get the complainant's agreement to allow you to proceed with the matter.
• Promise to make a full investigation, promptly and confidentially.
• Advise management of the complaint and inform them of the proposed course of action.
• Keep your notes in a safe place; make sure typing is kept strictly confidential.
• Advise the complainant that they may receive confidential advice from the Anti-Discrimination Commission.

6. Investigation

• Interview the alleged harasser, separately and impartially.
• State exactly what the alleged harasser is accused of, and say that you intend to make a full inquiry.
• Give them the opportunity to respond fully to the allegations.
• Make it clear, however, that they do not have to answer any questions put to them.
• Try to find witnesses to the incident(s) if appropriate. Ensure their involvement to the minimum so that confidentiality is maintained. Witnesses are only required to substantiate the facts of the case.
• Advise the alleged harasser that they may receive confidential advice from the Anti-Discrimination Commission.

7. Outcome - Complaint Substantiated

If you conclude that the complaint is substantiated:

• Tell both parties of your decision and the reasons for it.
• Decide on immediate and appropriate steps to prevent the behaviour from recurring, seeking permission from senior officers if necessary for the course of action you propose to take.
• Note the complaint and its resolution on the harasser's personnel file. Harassers should be told they may add their comments.

Check to see that the behaviour has stopped and that the solution is working satisfactorily. Keep in contact with the complainant to see that they have not been victimised in any way by having made the complaint.

Compensation for the harassed person could be:

• a public or private written apology
• a verbal apology
• a payment of medical or counselling fees associated with stress
• leave during investigation of grievance
• removal from files of detrimental comments on work performance during the period of harassment
• the transfer out of an environment with unpleasant associations, but with no job disadvantage to the transferee
• monetary compensation.

The harasser could be disciplined by:

• demotion
• transfer to another position, but with no job advantage
• withholding of job benefits
• warning and counselling on misconduct
• closer supervision of conduct
• suspension
• dismissal.

8. Outcomes - Complaint not Substantiated

If you conclude that the complaint(s) is not substantiated:

• Explain the reasons for your finding to both parties, for example that there is no evidence to support the complaint or that the conduct does not amount to sexual harassment.
• Tell the complainant of their right to take the case to their union or the Anti-Discrimination Commission if they are not satisfied.
• They may also approach the Human Rights and Equal Opportunity Commission which administers the federal Sex Discrimination Act.

For further information or advice, contact:

Advice and assistance with matters involving sexual harassment at the workplace may be sought from:

Industrial Advisers at the Chamber

Confederation House
2 Shepherd Street
Darwin NT 0800

Telephone: 8981 5755
Facsimile: 8981 1405

OR

NT Anti-Discrimination Commission

Location
7th Floor, National Mutual Building
9-11 Cavenagh Street
Darwin NT 0800

Postal Address
LMB 22 GPO
Darwin NT 0801

General Enquiries
Telephone: (08) 8999 1444
Freecall: 1800 813 846
Fax: (08) 8981 3812
TTY: 8999 1466
Email: administrationadc@nt.gov.au

Helpline for Managers
Freecall: 1800 150 288