10 March 2016
Elizabeth Kenny, Associate
Most organisations have policies and procedures around discriminatory behaviour and sexual harassment by employees and are aware of their own obligations in preventing discrimination and harassment. However, many organisations are less familiar with the question of potential liability where a customer or client acts in a discriminatory or harassing manner to their employees.
Under the Sex Discrimination Act 1984 (Cth) (the “SD Act”), it is unlawful for any person to sexually harass another in the course of seeking or receiving the provision goods, services or facilities from another person. This imposes an obligation on the customer or client to refrain from sexually harassing employees, but the employer is not technically vicarious liable for such conduct.
What is less well known is that employers (or anyone) who “causes, instructs, induces, aids or permits” another person to do an act that is unlawful under the SD Act may be found liable for the conduct. In these circumstances, if an employer is aware of sexually harassing behaviour by others that affects their employees and does not take all reasonable steps to stop that behaviour, then it may be construed that the employer is permitting the person to engage in acts that are unlawful under the SD Act.
In addition, employers also have an obligation under work health and safety laws to ensure the health and safety of workers. An employer may be captured under this regime if the sexual harassing behaviour causes a risk to the health and safety of a worker or group of workers and the employer has not taken steps to eliminate these risks.
Recently, a Bunnings Warehouse store in Melbourne banned a number of tradesmen from its stores due to sexual harassment of a staff member. The female employee complained to management about the sexual harassment of certain tradesmen shopping at the store and Bunnings reacted by banning the tradies.
Such actions are indicative of an approach that does not turn a “blind eye” but rather faces the situation head on and takes decisive action. Employers may also wish to consider inclusion of procedures for dealing with sexually harassing conduct by customers or clients in their workplace behaviour policies and training sessions.
If you think that your organisation will benefit from a review of your workplace behaviour policies or wish to implement one in your organisation, please contact PCS.