Sexual Harassment and Sexual Assault in The Workplace

Introduction

Sexual harassment and sexual assault is a widespread problem in society. This problem has a tremendous negative impact on the community. It is such an activity in which a person sexually touches another person with the intention to touch in a wrongful manner without the permission or consent of that person. Usually, in this cases, coercion, undue influence, physical forces play a vital role to engage a person in sexual activity against his/her will. It is a type of sexual violence inclusive of rape, sexual abuse of children, physical torture, or groping. Nowadays, the workplace is also not a safe place for women and men. In Australia, the rate of sexual assault and harassment in the workplace is very high. The men are also not safe inside the workplace. This paper mainly focuses on the issues related to sexual harassment and assault at the office premises, its impact on the Australian people, various policies regarding this ill practice, whether the existing rules and legislation are sufficiently able to fight with sexual assault and harassment or not. This paper also analyses the relevancy of the applicable rules and legislation. 

From our childhood, our parents taught us with a lesson that always respects women. The thesis statement of this paper argues the aims and objectives of the policy along with the liability of the employer to address the issues relating to sexual harassment at workplace. It is the duty of the employers to maintain proper work culture inside the office premises. That is why several laws are enacted to protect the rights of the Australian people. Different case references are going to be discussed in this paper, which will also support the thesis statement regarding the aims and objectives of the policy regarding sexual harassment at the workplace.

Main discussion

A workplace is a particular place where the people lead almost 8-12 hours per day. Therefore, it is the duty of the employer and the government as well to maintain the security of the workplace. In Australia, the expression of sexual assault is mainly used to describe a variety of sexual offences. The incidents of sexual harassments are increasing day by day in Australia with the increasing population. In fact, in workplaces of Australia, male employees are also not safe from this ill practice of sexual assault. According to the provisions of the Australian Constitution, all people of Australia have entrusted with the fundamental right of equality before law and equal protection of laws. Therefore, it is the foremost duty of the law and legislation of the State to protect the fundamental rights of the people. For protecting the men and women from sexual assault and harassment and preventing the wrongdoers, several Rules and Acts have been enacted by the Australian government. Not only that various policies has been made to reduce the rate of these types of crimes. Now it is important to discuss all these matters elaborately. 

The issue

The meaning of the terms ‘Sexual harassment’ and ‘Sexual assault’ are different from each other. The provisions of the Sex Discrimination Act, 1984 (Cth) interprets the term sexual harassment. Sexual harassment is a form of unwanted sexual behavior, which is insulting, intimidating and humiliating. The most important thing is that it is against the law. The incident of sexual harassment affects people differently. These types of harassments can be done verbally, or in writing or online or physically. If this incident of harassment happens in the school, college, university or office, then it will amount to sexual discrimination. Sexual harassment includes: 

• Touching, groping or making some physical contacts without the permission of that person;
• Making some comments which have a sexual innuendo;
• Asking to make a sexual relationship or sexual favors;
• Staring inappropriately;
• Displaying offensive substances;
• Making sexual movements of the body or gestures;
• Cracking jokes on sexual matters;
• Questioning about someone’s sexual life;
• Insulting with offensive or sexual comments;
• Committing offences that may amount to criminal crimes, such as making an obscene phone call, exposing private parts of the human body, assaulting sexually, forcing to watch pornography. 

Sometimes, sexual harassment may turn into sexual assault. If a person harasses another person sexually, that causes that person pain, intimidation, humiliation or fear of life, then that sexual harassment amounts to sexual assault. According to many psychiatrists, a person who has experienced sexual harassment might go through with the following mental issues, such as:

• Feel depressed, stressed or disturbed;
• Remove from social occasions;
• Loose self-confidence and self-esteem;
• Various physical anxiety, namely headaches, insomnia;
• Unable to concentrate on works or studies.

On the other hand, sexual assault covers a vast range of unwanted sexual behaviors, which are mainly used by the offenders to show their powers or control over the victims. It is such an activity in which a person sexually touches another person to move wrongfully without the permission or consent of that person. Usually, in these cases, coercion, undue influence, physical forces play a vital role to engage a person in sexual activity against his/her will. It is a type of sexual violence inclusive of: 

• Rape;
• Sexual abuse of children;
• Physical torture or groping.

In case sexual assault, both oral and anal penetration is considered as rape. It must be kept in mind that, to constitute rape, penetration is compulsory. In case of sexual assaults, it is not always true that offenders doing sexual assault to get sexual pleasure. It can also be done to control over a person. Sexual assault is a more serious offence than sexual harassment, and there is no fault lies on the part of the victim. There are some myths regarding sexual assault. Many persons are of the view that only women are the victims of sexual assault, but in reality, men and women can be the victims of the sexual assault. As sexual assault is a more serious offence than sexual harassment, therefore a person, who has experienced sexual assault, might go through with the following mental issues, such as: 

• Shock and denial;
• Fear of life;
• Silence;
• Anxiety;
• Depression;
• Mood swings;
• Nightmare and flashback;
• Isolation;
• Low self-esteem and low self-confidence;
• Attempts to commit suicide.

Both the problems have great negative impact on the civil and commercial aspects of Australia. Since 2002, the Australian Human Rights Commission has arranged a national survey on sexual harassments and assaults every five years. This survey provides an outline of the recent trends in Australia, on the frequency of sexual harassment and assault took place inside the workplace and in the community. According to a survey of 2016, the Australian Bureau of Statistics stated that one in two women and one in four men got sexually harassed during their lifetime. The study also noted that sexual harassment is experienced by the younger generation most. By keeping in mind regarding the ‘me too’ movement, the survey of 2018 has changed its methodology and for the first-time initiated an online review. 

The aim of the Policy

To prevent sexual harassment and sexual assault from the workplace, the laws and legislation of Australia take various steps. The government has written several policies in this regard. As it is a growing problem of Australia, therefore it is the duty of the employer, irrespective of the size of the organization, to take every possible step to prevent sexual assault and harassment as well as sexual assault inside the workplace to avoid vicarious liability. It means that every employer must implement active preventive measures to reduce the risk of occurrence of sexual assault and harassment. They also must respond when harassment occurs inside the workplace. Under the provisions of the Sex Discrimination Act, 1984 (Cth), an employer may be held indirectly responsible for the sexual assault and harassment, if he/she did not take all necessary steps to prevent the activity from the workplace. However, as no law constitutes all the required steps is not elaborated by the Act, and it varies from one workplace to another. 

It has been observed that, even after taking all the necessary steps to prevent sexual harassments and assault, such incidents took place inside the workplace. To avoid these types of events, an employer may make a sexual harassment policy, implement it properly and monitor its efficacy. In preventing these activities from the workplace, the employer and management of the organization need to clear to its employees that these types of events are not at all acceptable inside the workplace. To prevent this, an employer may take a zero-tolerance policy. Many authors supported the zero-tolerance system and are observed that to the fear of losing a job, employees maintain the proper work culture inside the office premises. However, a written policy is not enough to prevent sexual assault and harassment; it needs to be implemented through appropriate communication and education.

According to many authors, properly writing a policy is very important to prevent harassment from the workplace. Many employers incorporate the provision the general harassment into the sexual harassment policy. Widespread harassment includes harassment on the ground of race, sex, caste, creed, religion or sexual orientation. Some employers are of the view that it is essential to make an independent and separate policy having the provisions of sexual harassment and assault. The employers need to follow the following rules while writing a sexual harassment policy, such as: 

1. The system must be officially introduced at a meeting in the presence of all employees;
2. The CEO or representative of senior management must endorse the policy;
3. The policy must be written in simple English;
4. The language needs to be very clear and straightforward and must be understandable by all the employees;
5. The system must be displayed on the notice board;
6. Must send a copy of the policy in the mail id of the employees;
7. The policy must be signed and acknowledged by all the employees.

A policy on sexual harassment must have the below-mentioned elements, namely:

1. The policy must have a powerful opening statement regarding the attitude of the organization on sexual harassment;
2. An outline must be given to know the objectives of the company;
3. Must define the term sexual harassment;
4. The policy must explain what behaviors do not amount to sexual harassment;
5. The consequences of the system in case of a breach.

Apart from that, it is essential to understand the aim of sexual assault and harassment policy. The goals are:

1. Create such a work environment, which must be free from all sexual assault and harassment and where every member, employee and other workers are treated with proper respect and dignity;
2. Arrange training program and awareness lifting strategies to assure that all the employees realize the rights and duties;
3. Treat every complaint in a fair, timely, confidential and sensitive manner;
4. Ensure protection from any victimization;
5. Promote the appropriate degree of conduct.

These steps will help the employer to reduce the rate of sexual harassment and assault inside the workplace. 

Research and Recommendation

The government of Australia enacted several Acts and rules to deal with the sexual harassment and assault at the workplace and in the community. The provisions of section 28A of the Sexual Discrimination Act, 1984 (Cth) defines the term sexual harassment. Section 106 of the Sexual Discrimination Act, 1984 (Cth) explained the vicarious liability of the employers. Recently, the bar association of the Victoria published a Policy against Sexual Harassment, which came into effect from 1st July 2018. This policy aims to create a work environment free from all sexual assault and harassment, treat every complaint in a fair, timely, confidential and sensitive manner.

Many scholars stated that these laws, legislation, policies are undoubtedly helpful to reduce the chances of sexual harassment and assault from the workplace. However, the procedures, regulation and legislation need to be verified and changed from time to time. The laws and legislation prescribed the punishments for the wrongdoers committing these acts. However, if the employer and management of the company take the Zero tolerance policy, it will help to reduce the sexual harassment because in this present business economy, losing a job matters a lot. Many scholars stated that, apart from a policy, if an employer follows the five steps, it will reduce the possibility of sexual assault, such as:

1. Obtain high standard management support from the CEO and representative of senior management;
2. Write and execute a policy on sexual harassment;
3. Arrange proper and systematic training and essential message on sexual harassment to all the employees and management;
4. Encourage appropriate behavior by the administration;
5. Finally, create a positive workplace environment.

Apart from that, to always keep notice of the employees, employers can install CCTV cameras inside the workplace. It will record the activities of all the staffs of the business organization and in this way; the possibility of harassment can be reduced. As the sexually explicit materials can be transferred by the help of the internet, therefore the management must control the usage of computer and email by the employees.

Critical analysis

Many authors stated that the policies have great importance to reduce the possibility of sexual harassment and assault from the workplace. The aims of the policies have the efficacy to reduce harassment. Apart from the policies the employers also play a vital role to reduce sexual harassment. According to the decisions of the Shiels vs. James and Lipman Pty Limited (2000) case, it has been observed that, if the employees are located into a remote area, then it is the duty of the employer to carefully treat all the employees, made them aware about the policies of sexual harassment. In McAlister vs. SEQ Aboriginal Corporation for Legal Services (2002) case, the respondent was a lawyer, who sexually harassed a client of the employer. The employer gave several warnings regarding this to the respondent. The court held that the employer was not vicariously liable, because he took all the necessary steps to prevent the sexual harassment. Again, in Coyne vs. P&O Ports (2000) case, the employer held vicariously liable and it was explained by the Victorian Civil and Administrative Tribunal held that, writing a policy by the employer is not enough. It is also the duty of the employer to implement the policy and communicate the provisions of the policy to the employees. In Evans vs. Lee and Anor (1996) case, the court upheld the decision that it is the duty of the employer arrange trainings on sexual harassment after a particular interval. If no recent training program has been arranged by the employer and any incident happened inside the organization then the employer held vicariously liable for his conduct. Therefore, writing a policy is not enough. The employer has some other duties to implement it. 

Conclusion

From the entire discussion it can be concluded that, reducing the sexual harassments and assaults from the workplace is not an easy task. Many matters are involved here. To reduce these offences from the workplace the government, laws and legislation must act accordingly. It is the duty of the governments to make strong laws to prohibit the offenders. The punishments need to be very hard so that people think twice before involving in these types of offences. Apart from the government, it is also the responsibility of the employers and management of the organization to take necessary steps for decreasing the possibilities of sexual harassments. To reduce crime, policy has great importance, but such policies need to be implemented to by the employer effectively. If these steps can be followed properly then the rate of sexual harassment will reduce in Australia.

Works Cited

1. Australian Human Rights Commission. (2018). Everyone’s Business: 4th National Survey on Sexual Harassment in Australian Workplaces. https://humanrights.gov.au/sites/default/files/document/publication/AHRC_National-Survey-on-Sexual-Harassment-Report.pdf
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