Transforming prevention of sexual harassment

6 minute read  15.09.2020 Amanda Watt, Mark Standen, Kate Hilder

Overview of the Champions of Change Coalition report: Disrupting the System – Preventing and responding to sexual harassment in the workplace

The report, Disrupting the System – Preventing and responding to sexual harassment in the workplace - developed over 18 months, is the product of significant research and consultation as part of the MCC's long term mission to achieve gender equality, advance women into leadership and create safer and more respectful working environments. This work involved listening to those working in MCC organisations, consulting with industry and leading CEOs, liaison with the Sex Discrimination Commissioner and government, reviewing submissions, and examining current practices. The report provides insights, practical actions and resources that aim to disrupt the system on how sexual harassment is managed because the current system is not working. A new leadership approach by Boards and Executives, which develops workplace cultures that prioritise physical and psychological safety, respect and inclusion for all is critical to preventing sexual harassment in our workplaces. Amanda Watt, Partner, is a contributor to the report.


Key takeouts


  • The report proceeds on the basis that corporate Australia's current approach to sexual harassment has failed and that urgent change is necessary.
  • The report provides a suggested five part framework and accompanying tools and resources to assist organisations to rapidly transform and improve the way they deal with workplace sexual harassment.
  • The suggested framework advocates: 1) making prevention of sexual harassment and early intervention a leadership accountability; 2) addressing sexual harassment as a workplace health and safety issue; 3) putting in place clearly defined principles for transparency and confidentiality for dealing with high profile complaints; 4) creating a 'speak up' culture in which everyone within the organisation is informed, empowered and expected to speak up/act on sexual harassment in the workplace; and 5) ensuring that people impacted are listened to, respected and supported.

Overview

The Champions of Change Coalition (MCC) has released a report - Disrupting the System – Preventing and responding to sexual harassment in the workplace – providing a suggested framework and accompanying tools and resources to assist organisations to rapidly transform and improve the way they deal with workplace sexual harassment.  

The central message in the report is that generally speaking, corporate Australia's current approach to the issue has failed, that improvements in every aspect of the way in which sexual harassment in the workplace is dealt with are required, and that the changes cannot 'take time' but must be implemented with urgency.  

The approach in the report was developed over a two year period and informed by the findings of the [email protected] national inquiry into sexual harassment in the workplace and by extensive consultation experts in dealing with harassment complaints as well as with people impacted by sexual harassment.

Context

MCC observes that the report is being released at a time when community expectations globally towards sexual harassment and assault have shifted, and following the release of the landmark [email protected] report which both mapped out the scale of the issue in Australian workplaces and made recommendations for urgent change.

Despite the fact that Australia is in the midst of a health crisis, the MCC considers that the need to address sexual harassment is no less urgent.  

The release of the report also follows a number of high profile executive departures and criticism in the media concerning the way in which corporate Australia tends to deal with the issue.  The report is prefaced with a statement acknowledging that there is scope to improve, and committing leaders to driving that improvement.  

'We are sharing this resource not because we are perfect or consider our teams are immune to sexual harassment.  But as a coalition, we intend to be visible leaders in setting new standards, building new and better systems, and accelerating the pace of change. This is a guide for future approaches, recognising that the starting point for each organisation will be different'.  

Moving the dial: What should organisations be aiming for?

Page 25 of the report includes a graphic encapsulating the shift in the mindset, systems and processes required to achieve genuine change. 

In essence, the message is that corporate Australia's current approach is focused on compliance, minimising reputational damage and legal liability.  For example, leaders are focused primarily on compliance and cases are 'quietly managed', likewise boards/executive are primarily focused managing legal liability and protecting corporate reputation.  

The report advocates shifting this focus to instead be on prevention, early intervention and on reducing the number of people impacted.  Commenting on the shift in thinking required, Chair of Manufacturing Australia James Fazzino, said,  

'Up until now, sexual harassment has largely been considered as a workplace grievance process focused on resolving – usually as quietly as possible - individual cases. If you think about it instead as ensuring a physically and psychologically safe workplace for all staff, the approach you take to the issue changes significantly. Workplace occupational health and safety systems provide a good model to replicate or adapt to more effectively prevent and respond to sexual harassment'.  

The suggested framework in the report and the other resources included in it are aimed at supporting organisations to achieve this shift in approach. 

New approach to communication and transparency around claims

A key aspect of the suggested approach put forward in the report is a shift in the approach typically adopted toward those impacted by harassment and in the way in which organisations communicate about high profile sexual harassment.  

The report advocates the adoption of seven principles of communication aimed at ensuring due process in the management of claims, while also ensuring that: a) those impacted are able to speak freely about their experience (where they choose to do so); and b) that where allegations are substantiated, those responsible for the behaviour are unable to 'leave quietly' with no acknowledgement as to reasons for their departure.

The report suggests that the principles (below) are both a 'prevention mechanism and a practical guide' to communication. 

  1. A commitment to be transparent with internal and external stakeholders about the fact that sexual harassment claims exist within the organisation 
  2. A commitment to protect the identify of those involved during the investigation process 
  3. Asking those involved in any workplace investigation to keep the investigation confidential while it is underway (with the exception of seeking export counselling/support)
  4. Once the investigation is concluded, organisations will not restrict the complainant’s right to speak.
  5. Organisations may elect to identify the offender where allegations are substantiated and there is a legitimate public or stakeholder interest in doing so 
  6. A commitment to be transparent about the outcomes of investigations where allegations are substantiated and to be transparent about any financial settlement reached with an (alleged) offender, where they elect to depart the organisation.
  7. Where a financial settlement is reached with a complainant, the fact of the settlement will be disclosed to relevant stakeholders, together with the restrictions it imposes but not the amount.

Pages 44-48 of the report provide detailed explanation of the reasoning underpinning these principles and examples of potential language organisations could employ to communicate each.

A suggested way forward: Commitment to change in five key areas 

Sex Discrimination Commissioner Kate Jenkins is quoted as stating that the approach and the changes advocated in the report address a number of recommendations from the National Inquiry, 

'By openly acknowledging the prevalence of sexual harassment and taking action to address its systemic drivers, leaders have the unique power to ensure their workplaces are safe, respectful and inclusive. Their employees and the community expect no less from them'.  

Below is a high level snapshot of the five key areas in which change is required and some of the suggested actions for leaders to take in each area to drive the change.

1.  Make prevention of sexual harassment and early intervention a leadership priority

The report suggests a number of steps CEOs/leaders can take to elevate prevention and early intervention as a leadership priority.  Crucially, the report makes clear that boards need to do more/give the issue more focus than they are currently doing.  

Commenting on this issue, outgoing CEO of Cbus David Atkin observed that though creating a safe working environment has long been a board responsibility, their focus hasn't necessarily included sexual harassment.  'We want to see this oversight [board oversight] extended to include robust management of sexual harassment as a key indicator of culture, safety and leadership capability. These are all material issues for Boards to be aware of' he said.

Suggested steps include:

  • Establishing and communicating a gender equality strategy and action plan and 'striv[ing] for gender balance in the workforce'.
  • Taking active steps to ascertain how sexual harassment manifests within their own organisation and industry as well as the risks and impacts.  
  • Clearly stating that eradicating sexual harassment is a leadership priority.
  • Ensuring that every employee (including those with high status) are aware that sexual harassment will not be tolerated.
  • Setting expectations and providing support to enable leaders to address issues appropriately.
  • Requiring regular internal reporting to the board on sexual harassment incidents.  The report suggests that existing safety metrics could be used as a basis for reporting on sexual harassment.  Suggested metrics are included in the report at p98.
  • Requiring external reporting (in annual reports) on sexual harassment incidents.  A suggested example disclosure is included at p99 of the report.
  • Modelling appropriate behaviour and addressing disrespectful and/or unlawful behaviour in the moment and empowering others to do so.

2.  Address sexual harassment as a workplace health and safety issue

Building on this, the report advocates integrating sexual harassment into workplace health and safety communications, policies, procedures and training and oversight mechanisms.  

Suggested steps for CEOs/leaders to take include: 

  • Articulating that the prevention of sexual harassment is a leadership and workplace health and safety issue for example, by issuing a leadership statement.  The report includes an example at p72.    

  • Ensuring a risk assessment has been undertaken 

  • Ensuring that the consequences for different types of behaviour are clear

  • Demonstrating that the organisation is willing to apply appropriate consequences where appropriate to do so, by ensuring that where disciplinary action is taken/consequences are applied, the outcome is shared.  For example through sharing aggregated and anonymised case studies.  

3.  Establish clearly defined principles of transparency and confidentiality for high profile sexual harassment claims 

As discussed above, a key aspect of the report is a shift in the approach companies typically take to communication around sexual harassment claims.  In terms of the actions leaders can take on this issue, and in addition to adopting and endorsing clear principles around confidentiality and transparency around internal and external communication, the report suggests that leaders should:

  • Ensure the principles around communication are well understood within the organisation to support prevention efforts and to act as a deterrent to poor behaviour.

  • Amend current approaches to non-disclosure agreements to ensure complainants are not silenced and that there is 'some transparency and disclosure to employees, stakeholders and the community'.

  • Share internal updates on sexual harassment within the organisation

 4.  Creating a 'speak up' culture: 'Inform, empower and expect everyone to speak up and take action on sexual harassment in the workplace'

The report calls on leaders to:

  • Create a workplace environment that is safe for people to speak up.
  • Ensure there is a common framework/well-understood language within the organisation for identifying, raising and responding to all forms of sexual harassment.
  • Integrate into leadership communications, policy and practice an expectation that speaking up/acting to address sexual harassment is expected of everyone and in many circumstances in a workplace health/safety obligation

5.  Ensure those impacted by harassment are respected, empowered and listened to

A key message in the report , and key to the shift in approach, is the need to move towards a person-centred approach.  Building on all the previous steps, the report calls on leaders to:

  • Develop and implement new standards for the use of non-disclosure agreements.
  • Build capability of internal teams to respond appropriately to people impacted by sexual harassment.  
  • Establish person-centred, safe and supportive reporting, investigation processes and responses.  
 
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https://www.minterellison.com/articles/summary-mcc-report-on-dealing-with-sexual-harassment-in-the-workplace

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