Legislative reform in the ACT will impose a positive duty on organisations, businesses and even individuals with management responsibilities to take reasonable and proportionate steps to eliminate sexual harassment.
The legislation includes chancellors and vice-chancellors at universities, sole traders and owners of small private businesses, educational authorities, sporting clubs and churches as examples of those who newly bear this responsibility, giving it broad scope.
Reasonable and proportionate steps could include improved transparency about policies and responses to sexual harassment and high-quality training that goes beyond pls don’t sexually harass 🙂
The significance of this legislation is that it represents a shift in the burden of responsibility, completely reframing how we understand the root cause of sexual harassment and to whom we attribute it.
See, in the best traditions of Australia’s attitude to sexual violence, our institutions and systems predominantly retain an approach that is less do no harm and more give no fucks — at least until a harm occurs. Once something happens, we might respond at an individual level — and even then, there’s only so many fucks to give, it seems.
As a society, we have historically engaged in a sort of cognitive dissonance. On one hand, we think of sexual violence and harassment as perpetrated by other individuals — creeps and sleazes who are separate from us. But on the other hand, when confronted with the reality that perpetrators are among us, we often find ways to excuse the behaviour: this one’s a good bloke; he was drunk; it was a clumsy attempt at a compliment; is it worth ruining his career?
These responses are two sides of the same coin we use to buy our own absolution. Neither response requires us — our communities, our institutions, our places and spaces — to look at ourselves. We make sexual violence and harassment an individual, event-based issue, refusing to recognise that it is a product of an ecosystem to which we all contribute.
The beliefs, values, expectations and choices that drive individual events of sexual violence and harassment do not come from nowhere.
I have been sexually harassed on enough occasions — years apart, in different industries and at different stages of my career — to know that it wasn’t just poor luck that I encountered bad apple after bad apple. Those men exist in a world where that behaviour is permitted, excused, even facilitated. They weren’t bad apples. The barrel was riddled with rot.
On one occasion, I was sexually harassed at a work-related event and later learnt the man had “a reputation” for it. The fact that the community permitted him to continue to attend those events despite that reputation, to continue to behave the way he did, is the kind of inertia this legislation is aiming to address.
But it’s not just that, after the first time he behaved that way at such an event, there should have been an intervention. He should never have felt able to behave that way in the first place.
The ultimate sanction applied to him should never have come as a surprise. He should have felt far too embarrassed at the thought of ever behaving that way. He should have known the community would do more than shoot him a collective side-eye. He should have felt the full weight of community expectation that he not behave that way, feared the collective disapproval that would surely follow. Even better than fearing public shame, he should have been intrinsically motivated not to do what he did because he would felt neither the desire nor the right.
We will only get to that place if, as a community, we recognise our collective role in cultivating an ecosystem that allows sexual violence and harassment to flourish. That is what this legislation attempts to address, to make changes to the ecosystem itself — the environments, the institutions, the cultures — rather than to simply wait for yet another apple to behave badly.
let’s hope all the other Labor states follow the ACT’s lead
But will the law will pick up the judges, Commonwealth public servants and politicians working in the ACT? We can guess the public servants have some guard rails and rules but the other two groups seem to have plenty of form.
The article is a good update of a legislative change but I don’t think there was sufficient emphasis on the employer’s duty to prevent sexual harassment under the WHS laws and as the actions could cause psychological harm.
Katrina often mentions “community” but the legal obligations seem focused on the workplace and on work, not on sexual harassment in non-work circumstances. And the positive duty for the prevention of harm has existed in OHS/WHS laws for many years. It is just that the duty to prevent has been given a push by the excellent work of Kate Jenkins and others over the last few years.
To improve the situation we should first ask why the positive OHS/WHS duty was ignored for decades? This will identify the attitudes and organisational structures that have to be addressed to meet our legislative and moral duties.
Being held responsible for something you quite reasonably may not have any control over sounds rather scary.
I can imagine this having a pretty negative impact on small businesses as a whole.
As I read it you are only responsible for taking reasonable and proportionate steps. Not such a hard ask, and less onerous than say food hygiene requirements or other aspects related to workplace safety. If someone can’t do this, get out of business and let someone who can replace them.
Dr smithy, I think the duty is to prevent harm and to provide a safe and healthy work environment as the core concern. The end result may be that after detailed assessment of the harm prevention options, employers reach a strategy that is accepted as so far as is reasonably practicable. The obligation is to aim high and reach a practicable solution, not to aim for the practicable solution first. If we only do the latter, we may miss opportunities to eliminate the hazard, which is also the aim of the positive duty Katrina discusses.
I am thinking of small businesses that obviously don’t have the resources to provide any sort of policy or training that goes past, as the author put it, “pls don’t sexually harass”.
If you’re a one person operation, and you hire, say, two people – one admin, one sales – and one of them ends up harassing the other, are you as the business owner going to be liable for not being “proactive” enough because you don’t have the resources for a rigorous anti-discrimination “training” regime ?
Because that’s how it reads above.
It’s one thing to require organisations big enough to have dedicated HR departments to do this, it’s a very different thing to require small businesses with very limited resources to do it.
Wouldn’t a three person workplace take a different approach to organisations large enough to have HR departments? I’ve worked in organisations with a handful of people to one of the biggest employers in the country. The approach they take to training and workplace culture development is very different at least in part because workplace dynamics is very much affected by the number staff.
Workplace culture is a management responsibility pure and simple. If people can’t create a culture of workplace safety, should they be in business in the first place?
Sure, but people aren’t robots and will act of their own volition, and holding one person responsible because of the entirely independent actions of another does not seem fair.
A small (or even medium) business does not have the resources to run its own internal “police force” as it were, to continually monitor whether or not everyone is doing the right thing.
I’m good at delivering the high quality work that keeps existing clients coming back and new clients joining us, but I’m not a manager or business owner because I don’t have the skills to do those jobs, particularly the people skills to handle someone troublesome. If woe is me is the managerial response to workplace safety, managers and business owners really do need to be re-appraising their skill set and joining the workers like me who aren’t up to that kind of job.
This kind of incompetence doesn’t just affect workers (as important as that is), it also affects national productivity.
You are being disingenuous.
Nobody is suggesting the response to “workplace safety” can or should be “woe is me”.
But there is a vast gulf of difference between reacting appropriately when workplace harassment occurs vs being held responsible for not proactively preventing it from occurring, when you are an organisation that does not have the scale to dedicate people specifically to that task.
I’m not being disingenuous at all. I have been unsafe at work due to sexual harassment. I couldn’t go to the water cooler without being followed and having a slime put his hands all over me. I couldn’t do (unpaid) overtime because it wasn’t safe to find myself alone in the lift or stairwell with a slime.
I’m currently working in a small team run by a very successful small business person. She has people smarts amongst the other critical skills. She chooses good people and keeps on top of workplace relations. This is proactive management in action. She generates incredible loyalty and the payoff for her is significant. She would never be sobbing into her Weeties because one of us is a workplace harasser.
You are still being disingenuous because you are presenting a false dichotomy between holding people responsible for preventing harassment before it occurs and doing nothing at all when it occurs.
Preventing sexual harassment from occurring and dealing with it appropriately if all reasonable preventative measures have been taken and it still happens are both essential if managers and business owners are to offer safe and productive workplaces for human employees. Different for robots, but essential if the work is being done by people. The ACT government is just acknowledging that reality.