Tougher workplace sexual harassment laws have been enacted in Australia. The new Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 came into force December 12, 2023 to address outstanding recommendations of the Respect@Work report and provide better protection from sexual harassment and sex-based discrimination at work. Captured under the new criteria are sexual harassment and misconduct, sexist attitudes, decisions and promotions, and access to overtime. Plus, with new legal and regulatory frameworks, the Australian Human Rights Commission (AHRC) now has the power to investigate whether organisations and businesses are sufficiently meeting obligations and issue notices or enforce penalties for non-compliance.
From a screening perspective, this means it’s more important than ever to ensure your recruitment process includes thoroughly vetting new hires. This helps you demonstrate due diligence and show you’re taking measures to build a respectful and safe culture.
In this blog post I cover:
- Understanding positive duty;
- The cost of sexual harassment in the workplace;
- Background screening best practices; and
- How innovative approaches to screening such as social media screening can help employers show leadership in creating safe workplaces.
Understanding Positive Duty
Under the amendments to the Sex Discrimination Act 1984, organisations and businesses must take reasonable and proportionate measures to eliminate, as far as possible, sex-based discriminatory conduct such as sexual harassment and acts of victimisation in the workplace.
This key reform requires employers to shift their focus from zero tolerance to zero harm and to focus on preventative efforts. Many viewed the Sex Discrimination Act 1984 as limited because it failed to acknowledge the systemic nature of sexual harassment and treated it as if it’s an individual, interpersonal problem rather than part of a wider cultural issue. By contrast, the reform expands employer obligations from a reactive, complaints-based approach to a duty to proactively prevent harm to workers by identifying systemic risks and developing responses to minimise those risks – it shifts the focus away from an issue for one person to tackle and instead to an issue for society to address in a more holistic way.
The Cost of Sexual Harassment in Australian Workplaces
The AHRC’s 2018 survey concluded that the reactive process wasn’t working to ensure people are safe from sexual harassment at work.
The Fourth National Survey on Sexual Harassment in Australian Workplacesresults, as reported in the Respect@Work: Sexual Harassment Inquiry Report (2020), found that sexual harassment in Australian workplaces is widespread and pervasive. A third of people who’d been in the workforce in the previous five years reported they’d experienced sexual harassment at work. The same numbers were reported in the Fifth National Survey on Sexual Harassment in Australian Workplaces conducted in 2022. The fifth national survey also reaffirmed that this issue disproportionately affects underrepresented groups such as women (41% women said they had experienced workplace sexual harassment compared to 26% of men).
The negative impacts of these issues can be massive, as it’s reported that the cost of workers’ compensation claims related to sexual harassment was $16 million in 2022 (add stat).
Creating Safer Workplaces: Background Screening Best Practices
It’s clear: employers are required to introduce proactive measures to prevent sexual harassment in the workplace. Despite the 12-month transition period, workplaces are being urged to implement change now.
I feel strongly that background screening and background checks are a useful control measure to minimise the risk of violence happening in the first place, alongside anti-harassment policies, training and education programs, and reporting channels.
Practical education and guidance materials on positive duty and how duty-holders can satisfy these new legal obligations is under development by the AHRC. Background screening has long been seen as a helpful way to manage risks in the workplace.
Many industries have established best practices and standards for background screening, such as those requiring professional licences or involving vulnerable populations such as children or the elderly. Depending on which checks you run, background checks may show information on employment history, public social media behaviour, convictions, arrest warrants, and other criminal charges such as in the example of a criminal record check. Background checks may help you identify individuals with a history of violence, fraud, theft, or other criminal activities to head off potential problems before they arise.
When conducted in a fair and non-discriminatory manner, that is, in a systematic way that’s proportionate to the role and obtaining consent and running checks at appropriate times in the hiring process, background checks can help build a culture of trust. Conducting thorough background checks is one way to show you’re taking steps to ensure a safe and secure work environment.
Background Check Innovation
In light of tougher workplace sexual harassment laws, social media screening and adverse media searches, which uncover information that may not show up in a criminal record check and a rescreening or continuous monitoring program, might be worth adding to prevent workplace sexual harassment.
Social Media Screening
Pre-employment social media screening, also known as a social media check, works by using software to analyse public posts, images, and videos from a candidate’s profiles, news items where the candidate is mentioned, and other public websites like open forums.
You have to be careful about what information you look for and how you use it. Done compliantly, only job-relevant risk criteria is searched – what someone eats on their honeymoon in Fiji or their partner’s race isn’t going to be flagged. If public social media content is used in the decision not to hire a candidate, it should be directly related to the candidate’s ability to effectively perform the job requirements; otherwise, you put your organisation or business at risk of legal action.
Anything that turns up in our social media screening is documented under one of the predefined risk factors in the report for your consideration. Combined with a human analysis, the report can give you more insight into who you’re hiring.
Adverse Media Checks
Adverse media checks can be part of a broader strategy for mitigating risks and maintaining safe workplaces. Like social media screening, adverse media checks can reveal information about a candidate’s past behaviour, including any allegations or accusations of sexual harassment.
How does it work? Our adverse media searches scan worldwide news articles and publications, including content such as websites, blog posts, images, and videos. We can tailor the list of search strings so the search picks up content that doesn’t necessarily appear in a criminal record check but may still pose a risk.
Rescreening and Continuous Monitoring
Part of employers new responsibilities includes monitoring the workplace for signs of sexual harassment, providing opportunities for employees to raise concerns and taking disciplinary action against employees who engage in sexual harassment. Depending on the size of your organisation and the nature of your work, you may want to consider implementing a rescreening or continuous monitoring program.
Rescreening may be triggered by a promotion or change in job duties, whereas continuous screening is an ongoing requirement for some regulated industries. Your legal counsel and background screening vendor can help guide you through compliance to lessen the burden and create a safe and respectful workplace.
Background screening is a tool that can help advance systematic, preventative action against workplace sexual harassment.
Path Forward for Australian Workplaces
New measures in the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 and amendments to the Sex Discrimination Act 1984, recommendations of the landmark Respect@Work report, spell out that employers have a positive duty to prevent and respond to workplace sexual harassment as a work health and safety issue. These changes require employers to shift their focus to actively preventing workplace sex harassment and discrimination rather than responding only after it occurs, and it’s your job as a talent professional to ensure you understand the obligations.
While more guidance is forthcoming, there’s still a lot organisations can do to prepare to ensure they’re compliant. Compliant social media checks and adverse media searches may provide valuable insights into a person’s history, uncovering additional information on behaviours or reports related to sexual assault or harassment.
Industry-Leading Background Checks
Background screening in the form of verifications and background checks goes a long way towards creating safer workplaces, but not all background screening service providers are created equal. As the 20,000 teams that trust us know, not every vendor has the capacity to run background checks in over 190 countries and with as short turnaround times as us.
Click this link to book a meeting to learn more about the world’s easiest background checks. I’m excited to show you how we can help your business make checking so much easier.
The information in this article is only intended as a guide. It’s not a substitute for legal advice and you should consult with your legal counsel for how to apply the law.
