The Worker Protection Act will become legislation next year, placing a duty on organisations to protect employees against third-party sexual harassment. It’s a delicate area, but one HR teams can prepare for, explains Samantha Mangwana.
In light of the new duty to prevent sexual harassment, HR teams may be wondering, in a practical sense, what actions to take to support the intentions of the Worker Protection Act.
The Bill, which completed its path through parliament last month, requires employers to “take reasonable steps to prevent sexual harassment of employees”, but doesn’t spell out what those reasonable steps are.
This will, of course, vary from employer to employer – taking into account their differences of size, resources, practicability and ways of working. But, it would be helpful to have a framework, and a sense of where to start.
In Australia, a similar law was passed a year ago, and we have been able to draw some learnings from this already.
Take a deep breath
Firstly, it’s going to be okay. People panic when it comes to dealing with sexual harassment, as if it comes out of nowhere with no warning and there is no place to start. But you can build a methodology that really does work, as I outline below.
Secondly, be clear on your reasons why you’re adapting your approach. To really make a change, you must embody, to yourself and others, that this is not just about compliance with a legal duty; you need crystal clear certainty at senior leadership level about why you’re addressing this.
Worker Protection Act
For example, is it part of a wider respect or behaviour initiative, and in line with the organisation’s purpose and values Ensuring that someone at senior leadership level has direct personal responsibility for delivery is often helpful to this.
Thirdly, treat sexual harassment as a health and safety risk (it is one, just with a human cause). With this mindset, tackling sexual harassment risk is not much of a leap conceptually from activity you’re likely already undertaking.
Would senior managers and leaders allow staff to go around making the workplace unsafe in other ways? Breaking chair legs or setting things on fire, for instance? Of course not. Immediate action would be taken and the conduct stamped out.
Risk management approach
Treating it this way does not mean that existing health and safety management covers sexual harassment. Far from it.
But a risk management approach starts by identifying the risk factors, and considering what steps we can take to make the workplace safe with this in mind.
Historic complaints are a starting point, but the overwhelming majority of sexual harassment goes unreported – and so relying on complaint information (or assuming there is no problem because of an absence of complaints) is a mistaken approach.
It is very helpful to look to Australia for the work done on analysing workplace settings where sexual harassment is prevalent – including where it went unreported – to uncover key risk factors and act upon them.
Here are some potential danger areas and potential solutions:
Where there’s a power imbalance – fundamentally, abuse of power is at the core of sexual harassment. Others may fear challenging or speaking out against that power. ‘Power’ can be held by those with talent; fame or revenue-generating status; by clients or those with social capital; the long-serving or popular people; or those with influence over senior figures.
Action: Of course, a formal hierarchy is the usual management structure in most workplaces. Make it a priority to ensure that there are genuinely safe avenues for staff to raise the conduct of even their senior-most leaders and managers – or most valued customers and talent – and to hold everyone accountable for their actions, regardless of who they are and the power they hold.
Where there’s gender inequality – interestingly, this is not simply about the base ratio of men to women. Research has found sexual harassment prevalence also to correlate with other inequalities, such as gender pay gap, male-dominated senior leadership, a culture of different genders performing certain jobs, and sexist ‘banter’.
Action: Therefore, work on female progression to senior leadership (including managing maternity and the return to work more successfully), as well as reducing your gender pay gap, are reasonable steps that help to prevent sexual harassment.
Intersecting discrimination risks
Where there’s intersecting forms of discrimination – there is a higher risk of sexual harassment for workers with multiple strand discrimination factors such as race, disability, sexuality, and age. Sexual harassment can cause compounded harm to workers who are already marginalised.
Be ready to adapt processes to the individual, taking into account their needs and preferences, so as to foster an environment where people feel safe to speak up.”
Action: From an HR perspective, this helps identify who may be more at risk and less supported – useful when it comes to applying that risk management lens and focusing on mitigations.
Lack of accountability
A lack of accountability for disrespectful and discriminatory behaviour enables sexual harassment to thrive. What’s accepted and unchallenged becomes the standard. And staff won’t speak up unless they believe there’s a reason to.
Action: In contrast, when leaders set and uphold clear expectations about appropriate behaviour, so these are called out by everyone, and action is seen to be taken, it actively reduces the likelihood of sexual harassment occurring.
Specific industry factors
You must also consider your specific workplace and industry factors such as high pressure environments, keeping customers happy, long or irregular work hours, expectation to consume alcohol at work events, frequent contact with third parties, lack of diversity; unclear or inconsistent standards of behaviour, poor workplace culture, the physical workplace environment. Action will depend on what they are.
Consult with staff
With all of this in mind, the next step is to consult with staff. This step can be the hardest – although also most illuminating – in further identifying your risks. We work with organisations to conduct listening exercises safely and in a way that elicits tangible findings.
Throughout, it is important to be ready to adapt processes to the individual, taking into account their needs and preferences, so as to foster an environment where people feel safe to speak up.
Sadly, the impacts of trauma may be complex, and pose a challenge for existing systems (employees may experience triggers, flashbacks or memory blocks as symptoms, and it can be re-traumatising to go over what happened).
Overall, the challenge is to create a genuine speak-up culture that doesn’t simply pay lip service to the idea, but generates in junior employees the trust required for them to be prepared to act as an early warning system.
As with other safety hazards in the workplace, success means making eradicating sexual harassment everyone’s responsibility. It isn’t just about leaders or a top-down diktat. The impetus of the new duty and this framework offer a way to make that happen. Prevention is better than the cure.