Key Points:
To a large extent, a compliance program's robustness depends on the quality of content and delivery of relevant policies and procedures, staff training and follow up on compliance behaviour and benchmarking.
What are "reasonable steps"?
In the Australian environment there is no prescriptive formula or prescribed steps which an employer must take to discharge its obligations to prevent sexual harassment in the workplace. Anti-discrimination laws simply provide that for an employer to escape vicarious liability for sexual harassment, an employer must have taken all reasonable steps or precautions to have prevented the harassment from occurring.
Various case authorities have however examined what is required to discharge the onus to take all reasonable steps or precautions. In this regard, courts have examined what are reasonable steps or precautions on a case by case basis. From this, some common themes have emerged:
- Employers should have a clearly articulated policy on sexual harassment which identifies what is appropriate and what is not appropriate conduct.
- Importantly, the policy must be actively enforced rather than being a mere "paper policy". Accordingly, there should be a grievance procedure by which staff with concerns can raise issues and when raised these should be addressed appropriately.
- In addition to any policies and procedures, employers should provide appropriate training to its staff to make clear the expectations and consequence of any failure to comply with those expectations.
The case authorities also suggest that what lengths a larger employer might have to go to, to satisfy having taken ‘reasonable steps’ is not the same as that for a smaller employer.
For example, in a decision of Federal Magistrate Driver of the Federal Magistrates Court in Johanson v Blackledge [2001] FMCA 6 it was held that the size of the employer is relevant to determining whether the particular steps taken by an employer are reasonable in the circumstances. In this respect Driver FM stated:
"(I)t would be unrealistic to expect all employers, regardless of size, to adhere to a common standard of preventative measures. This defence has been interpreted in Australia as requiring the employer or principal to take some steps, the precise nature of which will be different according to the circumstances of the employer".
In another decision of the Federal Court, Justice Wilcox, in Gilroy v Angelov [2000] FCA 1775 stated that while the law does not distinguish between small and large employers, small employers should at least adopt a process of preparing a "brief document pointing out the nature of sexual harassment, the sanctions that attach to it and the course that ought to be followed by any employee who feels sexually harassed" and that it be provided to staff on commencement of employment and routinely.
Justice Wilcox also suggested that larger employers have a higher onus to discharge observing that they have the benefit of "skilled human resources personnel and formal training procedures".
Is greater precision needed?
In light of the case authorities, when can an employer be comfortably satisfied that it has met its obligations to prevent sexual harassment and, therefore, discharged the onus to take "reasonable steps". Certainly, just having a policy will not be enough – especially if the content of the policy is deficient. Neither will once-off training which takes place at induction but is never delivered again. Ultimately, the test in all practical terms is to what extent an employer’s program delivers on compliance behaviour. This comes down to getting the content right, ensuring that the delivery of the message is provided with requisite seriousness, monitoring ongoing compliance and reinforcing expectations routinely.
Interestingly, in the United States, and in particular, in the state of California, there has been sufficient interest to regulate how compliance training is in fact developed, delivered and benchmarked. In an unusual development, expected new regulations will set out strict requirements regarding the nature and content of such training.
California's expected regulations will apply to businesses with 50 or more employees which carry on business in California. These businesses will be required to train all supervisors who are resident in California in accordance with the following guidelines:
- Training must be interactive - employees must be asked questions to assess their understanding of content learned, and they must be able to ask questions and receive replies within 48 hours. This training can be internet or computer based.
- Trainers must be experienced lawyers, HR professionals or university instructors. In the case of internet training, trainers must both develop the content of the training program, and promptly respond to any questions from employees.
- Training must take at least two hours to complete.
- Training compliance records must be retained for at least two years
- Each supervisor must receive training every two years, and new supervisors must be trained within six months of becoming a supervisor.
Training must also examine the following content:
- defining sexual harassment and other types of harassment
- assessing the effect of harassment on victims
- analysing sexual harassment prevention strategies, avenues for investigating complaints and remedies, using practical examples.
The future?
While Australia is still some way off the Californian model, the developments in the United States does pose some interesting questions for the Australian legal framework and how compliance training is approached here at home.
Nowadays, most large employers at least have a policy dealing with sexual harassment (if not anti-discrimination and appropriate workplace conduct). Most large employers also provide for staff training on such policies.
In the absence of a prescribed "suite" of steps which an employer must take to satisfy that it has taken "reasonable steps or precautions", however, employers should audit their diversity compliance programs to ensure that they provide the best make-up to prevent and resist vicarious liability for legal claims. To a large extent, whether a compliance program is adequately robust will depend on the quality of content and delivery of relevant policies and procedures, staff training (to general staff, managers and senior management) and follow up on compliance behaviour and benchmarking.
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