What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 2 March 2020 – 8 February 2020

Communal Language of ‘We’ and ‘Us’ in Codes Result in More Breaches

A recent study conducted by researchers at Harvard Business School and Bar-Ilan University found that employee’s willingness to comply with codes of conduct depends, in part, on their drafting. To determine how effective codes of conduct are in curbing unethical behaviour, the team examined the length, format and content of codes from Fortune 100 companies. The researchers found that codes which employed communal language – such as ‘we’, ‘our’ and ‘us’ – were linked with increased rule-breaking. Maryam Kouchaki, of Harvard Business School, postulated that this is because people believe they’re unlikely to face retribution or be punished. ‘You think, “Even if I’m caught, they are going to be kind, tolerant, forgiving”,’ she said. And while companies shouldn’t remove all communal language from their codes, Kouchaki recommended that they adopt an enforceable and formal tone, using language such as ‘employees’ or ‘members.’ Firms need to ensure people feel part of the company while also ‘making sure you communicate that bad behaviour isn’t tolerated here,’ Kouchaki concluded.

Gender Diversity Policies Alone Won’t Solve the Problem

A poll of over 400 Australians conducted in January and February of 2020 found that only 16 per cent of employees believe that company mandated policies are sufficient to improve gender diversity. In fact, Hays Recruiting found that mandated policies were the ‘least effective method of improving gender diversity in leadership positions and across a workforce.’ Twenty-eight per cent of respondents said that individual actions – for example, challenging stereotypes or speaking out against biases – are more effective. And fifty-six per cent of those who participated in the survey said that a combination of the two is needed to improve gender diversity in the workplace. Hays managing director Nick Deligiannis remarked on the findings by noting that ‘[t]o make real gender diversity progress, you need every piece of the puzzle put in its correct place.’ Deligiannis said that ‘you need to start with an organisational culture that supports and celebrates diversity and inclusion and where people feel they can call out bias and challenge stereotypes without fear of retribution.’ As well as this, ‘you need leaders who understand and champion the business benefits of diversity and inclusion and celebrate any diversity and inclusion successes,’ Deligiannis added. ‘Leadership training should address any lack of diversity in a particular area [and] [y]ou need diverse role models within the organisation,’ he concluded.

Recommendation to Put Sexual Harassment Breaches Under Safety Laws

New research from Belinda Smith, an Associate Professor at the University of Sydney Law School, and Melanie Schleiger of Victoria’s Legal Aid has called for improved Workplace Health and Safety (WHS) legislation to tackle workplace sexual harassment. The researchers argued that current anti-discrimination laws are failing, as more than a quarter of women report having experienced sexual harassment at work. ‘We argue that the primary reason anti-discrimination laws do not prevent harassment in work is because they are not designed to do so,’ the paper observed. The paper identified three main features which stymie the effectiveness of current anti-discrimination laws. First, that they impose negative prohibitions rather than positive duties to prevent; secondly, that enforcement is often through private, confidential negotiations and thirdly, that the remedies are ordinarily individual and compensatory. The paper said that with this relatively weak framework, anti-discrimination laws historically rely ‘almost entirely on the normative power of the law to articulate discrimination and harassment [as wrong] and thereby effect change.’ While the paper argued that the seriousness of sexual harassment ‘warrants a legal response,’ it cautioned that ‘a legal response will not be effective to prevent problematic behaviours if it is not tailored accurately to the nature of the problem.’ And since developments in anti-discrimination have ‘clearly been stalled in achieving change’, Smith and Schleiger argued for improvement to WHS laws to complement the gaps in workplace sexual harassment laws. This is because WHS laws are framed as criminal offences and impose a number of duties. The researchers argued that since WHS legislation require employers to prevent harm to their workers, the legislation should treat sexual harassment as a workplace harm. Associate Professor Smith noted that there has been a growing consensus among worker organisations that WHS agencies have the power to address sexual harassment. ‘By harnessing these laws in addition to the [Sex Discrimination Act], there can be systematic, preventative action against workplace sexual harassment,’ she said.