If a business takes certain steps they can avoid being vicariously liable for an employee who sexual harasses another worker.
The first step in avoiding liability for employee sexual harassment is to write a sexual harassment policy, give copies to every staff member and sign it.
So what should a sexual harassment policy look like?
The policy should include:
- a definition of what is and is not sexual harassment
- a statement that your business has a zero-tolerance approach to sexual harassment
- a general outline of the workplace’s goals for creating a safe work environment
- details of how internal sexual harassment complaints will be dealt with
- potential punishments for those who sexually harass
- contact details for third parties such as the Australian Human Rights Commission.
Definition of what is and is not sexual harassment
The basic legal definition of sexual harassment is any unwelcome sexual behaviour that a reasonable person would expect to make someone feel humiliated, offended or intimidated.
You should probably start off your policy document which this definition as well as some examples of what constitutes sexual harassment. For example:
- unwelcome sexual advances
- repeated requests for sex
- unwelcome comments about someone’s sexual activities or their appearance
- leering and staring
- jokes of a sexual nature
- displaying sexually offensive material at work
- continued requests for dates when the person had said no
- emails or SMS involving sexually suggestive messages
- accessing pornographic websites at work
- physical contact of a sexual nature
- indecent assault or rape (i.e. sexual assault)
Statement that your business has a zero-tolerance approach to sexual harassment
You need to make it clear from the outset that there is a zero-tolerance approach to sexual harassment in your workplace. Make it clear that every staff member and supervisor has the responsibility to make sure sexual harassment does not occur.
At the beginning of the document you should refer to the consequences if somebody is found to have sexually harassed another person such as having to make an apology, participate in counseling or be dismissed.
A general outline of workplace goals for creating a safe work environment
This might include statements like, we believe in:
- creating a working environment which is completely free from sexual harassment and where all members of staff are treated with respect;
- treating all complaints fairly, sensitively, confidentially and impartially;
- protecting people from reprisals once they have made a complaint;
- encouraging all victims of sexual harassment to report it.
Details of how internal sexual harassment complaints will be dealt with
Your policy document should outline how complaints will be dealt with.
Something like this might suffice;
“If you would prefer your complaint to be handled internally we can assure you that we will:
- obtain and document a full account of the incident/s
- thoroughly investigate any complaint
- have regard to your preferred outcome
- communicate with you during the process
- keep it all confidential
The policy should state that any staff member can complain internally or to the state or federal Equal Opportunity and Human Rights Commission.
Finally, it’s a good idea if you include your sexual harassment policy with your other workplace policies in an Employee Handbook. One of LegalVision’s lawyers can draft your Employee Handbook.