Tuesday, 11 June 2013

Preventing and responding to sexual harassment @ Workplace

Effectively preventing and responding to sexual harassment @ Workplace

Sexual harassment is described as harassment in subtle ways, which may include sexual innuendoes, inappropriate sexual gestures and propositions for dates or sexual favours. In more blatant forms, such harassment may include leering, pinching, grabbing, hugging, patting, brushing against and touching.

 The Supreme Court's guidelines describe physical contact or advances; demand or request for sexual favours; sexually colored remarks and showing pornography as offensive conduct. Sexual harassment becomes even more serious when the granting of sexual favours is made a term or condition of the individual's employment, when it interferes with the individual's work performance or it creates an intimidating or hostile work environment. The offensive conduct could be exhibited by a superior, a colleague, a subordinate or a client.

Sexual harassment can take various forms. It can involve conduct such as:

·         unwelcome touching, hugging or kissing
·         staring or leering
·         suggestive comments or jokes
·         sexually explicit pictures, screen savers or posters
·         unwanted invitations to go out on dates or requests for sex
·         intrusive questions about an employee’s private life or body
·         unnecessary familiarity, such as deliberately brushing up against someone
·         insults or taunts of a sexual nature
·         sexually explicit emails or SMS messages
·         accessing sexually explicit internet sites
·         inappropriate advances on social networking sites
·         behavior which would also be an offence under the criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.
·         Sexual harassment is not sexual interaction, flirtation, attraction or friendship which is invited, mutual, consensual or reciprocated

When is sexual harassment unlawful?

Sexual harassment is unlawful in almost every employment situation and relationship. For example, sexual harassment is unlawful at the workplace, during working hours, at work-related activities such as training courses, conferences, field trips, work functions and office parties. It is also unlawful between almost all workplace participants.

What are my legal obligations as an employer?

There are good business reasons for preventing sexual harassment in the workplace.
As an employer, you may hold legally responsible for acts of sexual harassment committed by your employees. This is called ‘vicarious liability’. The Sex Discrimination Act makes employers liable for acts of sexual harassment unless they have taken all reasonable steps to prevent it from taking place.

While there is no uniform standard expected of employers in taking all reasonable steps, at a minimum employers usually expected to:

·         have an appropriate sexual harassment policy which is effectively implemented, monitored and communicated to all workplace participants.
·         take appropriate remedial action if sexual harassment does occur.
Policies and procedures preventing harassment assist employers in maintaining positive workplace relationships and can improve employee motivation and performance.

In managing sexual harassment in the workplace, you may also have obligations under other laws, such as privacy, defamation, occupational health and safety and industrial laws.

Developing and implementing a sexual harassment policy

Why should I have a sexual harassment policy?

The key to preventing sexual harassment is for employers and management to make it clear to every employee and workplace participant that sexual harassment is unacceptable in the workplace. Employers should ensure that they have in place a clear sexual harassment policy, which is effectively communicate to each workplace participant and is understand. In addition, it is important that management throughout the workplace model appropriate behaviour.

A written policy on its own is not enough. A policy that is not implementing through communication, education and enforcement will be of little or no use in avoiding liability.

What are the essential elements of a sexual harassment policy?

A sexual harassment policy should include the following:

·         a strong opening statement on the organization’s stance on sexual harassment
·         an outline of the organization’s objectives regarding sexual harassment
·         a clearly worded definition of sexual harassment
·         specific examples of sexual harassment that may be relevant to the particular working environment
·         a statement of what is not sexual harassment
·         a statement that sexual harassment is against the law
·         examples of places and times where unlawful sexual harassment may happen e.g. in the office, work conferences, work field trips etc.
·         the consequences for employees if the policy is breached
·         responsibilities of management and staff
·         information on where individuals can get help, advice or make a complaint
·         a brief summary of the options available for dealing with sexual harassment

Tips for employers: getting your employees to understand your sexual harassment policy

·         Officially launch the sexual harassment policy at a full staff meeting.
·         The chief executive officer or a senior management representative should endorse the policy and emphasise the fact that all staff are required to comply with it.
·         Email copies of the policy to employees, put a copy on the intranet and place an automatic shortcut on employee desktops.
·         Provide the policy to new staff as a standard part of induction.
·         Display the policy on notice boards and include it in induction manuals.
·         Ask employees to sign a copy of the policy acknowledging they have received and understood it.
·         Assign responsibility for the circulation and review of the policy to a specific position or area to ensure that it is widely promoted and regularly updated.

Complaints procedures

How do I take appropriate remedial action when sexual harassment happens?

As part of the legal responsibility to deal with sexual harassment, all employers must implement effective and accessible complaint procedures for employees and other workplace participants. A good complaint procedure:

·         conveys the message that the organisation takes sexual harassment seriously
·         can prevent escalation of a case and maintain positive workplace relationships
·         ensures that complaints are dealt with consistently and in a timely manner
·         reduces the likelihood of external agency involvement which can be time consuming, costly and damaging to public image
·         alerts an organisation to patterns of unacceptable conduct and highlights the need for prevention strategies in particular areas
·         reduces the risk of an employer being held liable under the Sex Discrimination Act and other anti-discrimination laws
·         can help to minimise the harm suffered by the person harassed
·         reduces the risk of the employer being held to have treated the alleged harasser unfairly, such as in an unfair dismissal claim.

Five simple steps to prevent sexual harassment in your workplace

It is recommended that employers take the following steps to prevent sexual harassment.

1. Get high-level management support

·         Get high level support from the chief executive officer and senior management for implementing a comprehensive strategy to address sexual harassment.

2. Write and implement a sexual harassment policy

·         Develop a written policy which prohibits sexual harassment in consultation with staff and relevant unions.
·         Regularly distribute and promote the policy at all levels of the organisation.
·         Provide the policy and other relevant information on sexual harassment to new staff as a standard part of induction.
·         Translate the policy into relevant community languages where required so it is accessible to employees from non-English speaking backgrounds.
·         Ensure that the policy is accessible to staff members with disability.
·         Ensure that managers and supervisors discuss and reinforce the policy at staff meetings. Verbal communication of the policy is particularly important in workplaces where the literacy of staff may be an issue.
·         Review the policy to ensure it is operating effectively and contains up to date information.

3. Provide regular training and information on sexual harassment to all staff and management

·         Conduct regular training sessions for all staff and management on sexual harassment and the organisational policy. Ensure that the training is specific about the types of behaviours that may amount to sexual harassment. Regular refresher training recommended.
·         Train all line managers on their role in ensuring that the workplace is free from sexual harassment.
·         Display anti-sexual harassment posters on notice boards in common work areas and distribute relevant brochures.

4. Encourage appropriate conduct by managers

·         Line managers should understand the need to model appropriate standards of professional conduct at all times.
·         Include accountability mechanisms in position descriptions for managers.
·         Ensure that selection criteria for management positions include the requirement that managers have a demonstrated understanding of and ability to deal with discrimination and harassment issues as part of their overall responsibility for human resources.
·         Check that managers are fulfilling their responsibilities through performance appraisal schemes.

5. Create a positive workplace environment

·         Remove offensive, explicit or pornographic calendars, literature, posters and other materials from the workplace.
·         Develop a policy prohibiting inappropriate use of computer technology, such as e-mail, screen savers and the Internet.
·         Periodically conduct workplace audits to monitor the incidence of sexual harassment.

The apex court's judgment in the case not only defines sexual harassment at workplace but also lays down guidelines for its prevention and disciplinary action.

Once we do training that is more effective and give managers a better understanding of the issue and the skills to deal with it, we will have workplaces that are more productive, safer, and more welcoming to all.

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