The change in government has given new hope to advocates for workplace sex discrimination and sexual harassment reform.
They have reason to be hopeful. Labor campaigned on a promise to implement all 55 recommendations from the Sex Discrimination Commissioner’s Respect@Work Report. One of the hallmark recommendations — which the previous government was reluctant to adopt — is to legislate for a positive duty to be placed on all employers to take reasonable measures to eliminate sex discrimination and sexual harassment in the workplace.
Some argue that it is a system that is doomed to fail. However, this short-sighted perspective fails to recognise that this change is needed to shift how businesses perceive and engage with issues of discrimination and harassment at work.
Our current anti-discrimination and harassment laws let both victims and employers down. Although robust, our laws are reactive.
They are predicated on an incident occurring and victims bringing the matter to the employer’s attention. Many have rightly commented that this approach places an unreasonable burden on the victim. But the reactive nature of our laws does not benefit employers either. It results in employers having an unhealthy relationship with how they manage and respond to discrimination and harassment.
When perceived entirely through the lens of responding to an incident, one that can have serious legal consequences, employers’ natural reaction is to fight. Their primary motivation is to mitigate risk by denying or avoiding accountability. They will typically do this either by finding reasons to not accept that the conduct occurred, or argue that they did everything in their power to prevent it.
This leads to employers prioritising their own wellbeing over the victim. It also stifles self-reflection and progress. In many cases, an employer would rather deny that it mishandled a situation or admit it could have done better in fear of liability.
That fear can overtake concerns for the victim. Considering victims are often seeking acceptance, accountability, and remedy over any penalty or financial windfall, our system is clearly broken.
The introduction of a positive obligation to eliminate sex discrimination and harassment will help reshape the relationship employers have with our anti-discrimination laws. Detractors argue that a positive obligation will be too impracticable or difficult to enforce; that it will amount to nothing more than a toothless tiger. While Labor will need to confront these criticisms, they are not enough to give up on the recommendation.
If for nothing else, a positive obligation will encourage employers to engage with issues of anti-discrimination and harassment from a new perspective. One that requires regular self-reflection and self-improvement, allowing employers to make bold admissions and decisions that better their practices without fear. Decisions that prioritise the people who are most affected by discrimination and harassment.
Our perceptions need to change. This will help.
Wesley Rogers is a partner at Marque Lawyers, a purpose led commercial law firm based in Sydney. Wes advises clients on everything employment related, from hiring to firing, and has particular expertise assisting clients through disputes, Fair Work Ombudsman investigations, and workplace compliance matters, to achieve pragmatic outcomes. Wesley’s aim is to get clients the clear answers they need in an otherwise overly complex workplace system, so clients can focus on what’s important: creating and maintaining positive and productive staff and workplaces.
