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Sexual harassment is unlawful in the workplace
Management

Discrimination and harassment - Part 2

05/03/2019
By Karen Crouch
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A robust policy is necessary for navigating sexual harassment complaints in the workplace. In the second of a two-part feature, KAREN CROUCH explains what an effective policy includes.

In this second article, we discuss aspects of the most extreme form of harassment: sexual harassment. Recently, controversial and widely debated incidents have highlighted the need to understand this undesirable and immoral workplace activity, which also exposes practices to possible legal action.

Sexual harassment is unwanted, unwelcome or uninvited behaviour of a sexual nature that makes someone feel humiliated, intimidated, embarrassed or offended.

It includes behaviours that are physical, verbal, humorous or abusive, such as bullying, propositioning, threatening, stalking and the distribution of offensive material. Such material can include letters, e-mails and social media posts. A clear-cut definition of sexual harassment is difficult to establish, as circumstances and interpretations vary from case to case.

Sexual harassment is unlawful in any work-related context, including conferences, work functions, office parties and interactions with non-employees.

"Sexual harassment is unlawful in any work-related context, including conferences, work functions, office parties and interactions with non-employees."

Policy may clarify that the practice does not discourage development of friendships or close relationships in pursuit of high quality patient healthcare. Such an acknowledgement is important to dispel any fears among staff that their intent to cooperate and support fellow health care workers will not be turned into a claim.

In some instances, one person may contend that an act was consensual while the other will argue that consent was withdrawn, even though initial consent was given.

Consequently, it can be very difficult to establish beyond doubt when a liaison, which started as a consensual affair, was terminated. In some situations passions take over, and the expressed desire to cease contact is either misinterpreted, sometimes conveniently, or ignored.

Best conduct

A practice has a legal responsibility to prevent discrimination and harassment to the best of its ability, otherwise it could be deemed to be liable for the behaviour of its employees.

Managers, supervisors and directors should:

  • Ensure acceptable standards of conduct are observed, as reflected in practice policy

  • Demonstrate appropriate behaviour themselves

  • Promote practice policy through periodical forums and induction programs

  • Remain alert to apparent instances of inappropriate behaviour that deserve attention, and

  • Encourage complaint lodgement when a person feels they have suffered harassment, promptly investigating and resolving matters fairly.

Staff and other parties attending the practice or participating in external work related events must:

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  • Comply with this policy

  • Support anyone who feels harassed and let them know where they can get help or advice, and

  • Maintain confidentiality of information during a complaint investigation.

Though external parties, such as tradesmen or suppliers, may not be intimately aware of policy details, they should be able to assess the practice’s expectations based on staff behaviour.

Generally, employees with an issue should approach their manager, supervisor or director, provided that person is not the accused or perceived to be associated with the accused person. However, in isolated instances, a person who fears that he or she may be accused falsely of inappropriate behaviour may seek a manager, supervisor or director’s advice. Such instances may require professional assistance from an experienced mediator or legal professional.

Detailing incidents

While it is preferable for complainants to prepare written statements in their own words, if requested a manager, supervisor or director may assist the complainant in documenting the events. However, as a major caveat, extreme care should be taken to avoid influencing a complainant’s opinions, recollections or recording of the incident, regardless of the extent to which the manager, supervisor or director may be inclined to fully believe the complainant’s opinions.

Determination of facts should be left to subsequent occasions when all parties have recorded their version of events and the matter is under investigation.

Sexual harassment may be addressed in different ways, depending on severity of a complaint:

  • by the complainant confronting accused directly, if he or she is confident doing so

  • by the lodgement of a formal, written complaint described above, or

  • by approaching an anti-discrimination agency for information and confidential advice.

Depending on incident severity, consequences may include an apology, counselling, transfer, dismissal, demotion or other disciplinary action.

In serious instances, directors may seek legal assistance for which a formal complaints process may be adopted, resulting in conciliation or, if appropriate, court action. Complainants may report their complaint to police at any time.

 

More reading:

Discrimination and harassment - Part 1

 

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