Co-authored by Morag Fitzsimons and Robyn Melean.
The evolution of #metoo and how it became a movement that sparked global conversations about sexual abuse and harassment – especially in the workplace.
The effect of #metoo on Directors & Officers (D&O), Employment Practices and Statutory Liability policies and claims within Australia.
Workplace lessons learnt, and key takeaways for HR leaders.
How organisations can take meaningful action to build more diverse and inclusive cultures with increased awareness and accountability.
The #metoo journey
In 2017, #metoo set the world alight as more and more women came forward to tell their horrifying stories of sexual harassment/abuse/assault/violence that would see powerful, famous, and high-profile individuals under the spotlight for all the wrong reasons.
Since then, the hashtag has damaged the reputation of Actors, CEO’s, Producers, Executives, and well-known and beloved TV personalities. These are people that had been perceived as untouchable, but finally the victims' voices were heard and followed up with action, and in some cases - legal remediation.
In 1984, Australia introduced the Sex Discrimination Act which specifically prohibited sexual harassment at work, however as acknowledged in 2020 by the then Sex Discrimination Commissioner, progress over that time has been particularly slow. A 2018 workplace survey into sexual harassment revealed that almost two in five women and just over one in four men had experienced sexual harassment in the workplace in the prior five years - with rates of workplace sexual harassment in our indigenous population reported at higher rates.
This resulted in the Respect@Work: Sexual Harassment National Inquiry Report (2020) which identified that corporations still did not have the correct systems and accountabilities in place, with reports of sexual harassment largely buried, or the reporters of these offences being named and shamed through leaked documents and reports. The report went on to recommend a range of changes to legislation and school education on respectful relationships, plus changes to the current Sex Discrimination Act 1984 and improving the power of the Australian Fair Work Commission.
Since then, the Respect@Work Bill has passed the Senate and the House of Representatives with amendments that implement seven legislative changes recommended from the 2020 report. The new Respect at Work Bill 2022 includes a ‘positive duty’ whereby employers must take reasonable and necessary means to prevent and eradicate sexual discrimination and harassment. The bill also states to:
prohibit conduct that results in a hostile workplace environment on the ground of sex;
provide the AHRC with broader functions to enquire into suspected or actual systemic unlawful discrimination; and
require the Commonwealth public sector to report to the Workplace Gender Equality Agency.
Employment related claims
With #metoo sending shockwaves across the world, corporates soon recognised that this could not be ignored, with great concern for the reputational and financial risks associated with allegations of this nature.
Australia has always had a consistently high number of employment related claims. Prior to the #metoo movement, there were some high-profile cases that drew attention to specific conduct in the workplace. This heightened the awareness of one’s ability to make a claim against the employer for such conduct.
Western Australia’s Legislative Assembly recently launched an inquiry into sexual harassment against women in the FIFO mining industry and several companies were requested to attend and provide responses to the inquiry’s terms of reference. As a result of this inquiry, attention was drawn to incidents of sexual harassment and how companies were addressing this. This inquiry did result in attention being drawn to this conduct, either in the media or through social media.
The insurer reaction
Negative reports in mainstream and social media harm an organisation’s reputation and raise doubts in the minds of insurers as they question if such matters could lead to potential claims. Insurers are keen to learn about the relationship between a company’s board and its executive management team, and the broader culture of the company when underwriting D&O policies.
Workplace lessons learned
As a direct consequence of the Respect@Work report, The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 was passed. This bill implements six of the 12 recommendations for legislative reform. Of particular note, is the insertion into the Sex Discrimination Act by incorporating concepts of “worker” and “person conducting a business or undertaken” as commonly seen in Australia’s Workplace Health and Safety legislation. This provides expanded risk and penalties for Directors of organisations who fail to take the risk of sexual harassment seriously.
This places greater responsibility and risk on organisations with the expectation that they will review their existing policies to be in line with legal requirements, and the added workplace health and safety obligations associated with these risks. Some of the impacts and lessons learned from #metoo include:
Australia is starting to experience the dubbed ‘Weinstein Warranties’. This is in the case of mergers and acquisitions with organisations being advised to consider a ‘Weinstein Warranty’ to seek formal inquiries into the target’s anti-discrimination, harassment, and bullying policies, along with records of staff training on sexual misconduct.
Take allegations seriously with thorough investigations. That way an organisation has explored the accusation with the evidence to show they took appropriate action.
Silence is not golden. Organisations should get ahead of any statement, not only by addressing the actual incident/issue but by having in place a PR strategy to protect the organisation’s brand. It’s important that businesses show that they’re advocates for coming forward, and they’ll support employees who experience workplace sexual harassment/bullying.
The #metoo movement has certainly emboldened and encouraged employees to speak more freely about the issue of sexual harassment. This has led to a wider conversation on diversity between Directors and Officers and boards to address gender pay gaps and discrimination in all its forms to promote an understanding of workplace culture, with a no-tolerance approach to workplace sexual misconduct.
Take meaningful action
It’s highly important for organisations to understand the reputational and financial risks associated that can come with overlooking the gravity of sexual harassment/abuse in the workplace. It is therefore recommended that organisations undertake the following:
1. Establish and implement a Respectful Workplaces programme, designed to address expectations for respectful workplace interactions, and outlines steps for prevention – clear communication is key.
2. Review and update policies and processes in line with the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021.
3. Develop and deliver training to educate people leaders and executives on remedial action to take if an allegation/incident arises.
4. Consider changing recruitment/promotion practices that explore any sexual misconduct history, and ensure the incumbent receives appropriate training upon hiring or promotion.
Everyone has a right to work in an environment where they feel safe, and that includes being safe from sexual harassment. Employers have a duty of care to safeguard their employees from physical and mental harm. The events of the past few years have taught us that employers who choose to look the other way can come under fire with severe consequences for their own personal brand, as well as the organisation.
Finally, it’s important to remember that globally we are experiencing social change and that change comes in all forms. So, whilst organisations and governments have their part to play, it’s important the community continues to speak up, and create further awareness on the matter.