Evolving Sexual Harassment Laws: What Employers Need to Know about Positive Duty Laws.
The landscape of sexual harassment laws and obligations has undergone significant changes recently, introducing new challenges and responsibilities for employers and HR teams. Key developments include:
• Expanded Powers: The Sex Discrimination Commissioner now holds extended authority.
• Fair Work Commission Orders: Employees can apply for a stop sexual harassment order.
• Positive Duty Laws for Employers: Employers must proactively prevent sexual harassment.
• Serious Misconduct: Sexual harassment is now classified as serious misconduct under the law.
Furthermore, damages for successful claims have risen significantly, with expanded avenues for filing complaints.
Courts are lifting penalties
This recent Victorian case Leung v Chung (Human Rights) [2023] VCAT 1193 highlights the evolving judicial approach to sexual harassment claims. While the claimant was initially awarded $10,000 for repeated inappropriate physical contact through VCAT, after an appeal, the Victorian Supreme Court deemed the initial damages “manifestly inadequate,” leading to a revised award of $110,000 in damages and $29,250 for lost wages.
This case underscores the court’s growing emphasis on the seriousness of sexual harassment and the expectation that employers take robust preventive measures.
Why This Matters for Employers
Historically, sexual harassment has been challenging to address. However, with multiple avenues for litigation and increasing awareness, it has become a dynamic and pressing issue for organizations. Courts are signalling a zero-tolerance approach and a clear expectation for employers to meet their legal obligations. Various changes to Human Rights and Work Health and safety laws now put the onus on employers to proactively address sexual harassment—put simply it’s essential to comply with the positive duty, mitigate risks, and foster a safe workplace.
5 Positive Duty Steps for Employers
1. Comprehensive Training for All Staff
Equip employees with the knowledge and tools to recognize and address inappropriate behavior through Active HR’s Building Safe and Respectful Workplaces Training. This program covers the fundamentals of sexual harassment, how to intervene safely, and the importance of creating a culture of respect.
2. Leadership Training
Empower managers and leaders with the skills to fulfill their positive obligations through Leading with Clarity, Courage, and Care. This workshop focuses on leadership principles, navigating complex and difficult conversations, understanding psychosocial risks in the workplace, and fostering inclusive workplace practices across a multi-generational workforce.
3. Policy and Procedure Reviews
Having a strong governance framework that sets clear expectations and standards for zero tolerance of sexual harassment is a must and they must reflect best practice and align with the standards the business is willing to adopt.
4. Enhance Employee Support and Encourage Active Bystander Behaviour.
Employers must provide robust mechanisms to support employees affected by harassment. Training team members on how to become active bystanders, put the business on the front foot and in the best position of being able to bring this toxic behaviour to the surface quickly, so that it can be addressed before it takes hold and destroys a team.
5. Board-Level Awareness
For organisations overseen by a Board, sponsorship at this level is imperative. Ensure board members are informed about sexual harassment risks, organizational processes, and their governance responsibilities. Our practitioners are experienced in help business investigate and resolve matters pertaining to Sexual Harassment, Harassment and Bullying and can attend in person and provide a full and compelling briefing to the Board, giving your organisation the best chance of meeting its positive duty obligations.
Taking Action Today
By integrating targeted training programs such as Active HR’s Building Safe and Respectful Workplaces Training and Leading with Clarity, Courage, and Care, employers can proactively create a respectful workplace culture, meet their legal obligations, and mitigate risks. Now is the time to lead with purpose and ensure a workplace where everyone feels safe and valued.
Contact Active HR for further details on the right solutions for your organisation. At Active HR We Help Shape Great Workplaces.
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