Kate Jenkins AO GAICD on respect at work

Seven years as Australia’s Sex Discrimination Commissioner was eye-opening for Kate Jenkins AO GAICD. The former employment law partner and Victorian Equal Opportunity and Human Rights Commissioner reflects on the evolution of the law and the board’s role in driving change.

I came through school at the time of the Sex Discrimination Act 1984 — almost 40 years ago. I was in Year 11, and a lot of my career has followed the contour of that legislation. 

When I went to university those laws were being taught as a subject at law school. Jenny Morgan and Regina Graycar’s book, The Hidden Gender of Law, and two subjects — discrimination law and feminist legal theory — made an impression on me. 

Both revealed how the law had been designed around the male experience, particularly in the public world. It was the early days of understanding how those new discrimination laws would work in practice. 

By 1988, Dame Quentin Bryce AD CVO was Sex Discrimination Commissioner and at the time, there was a sense of momentum towards gender equality. 

As a young woman, I expected to be the beneficiary of the changes. I have been the beneficiary, but the changes have not happened at the pace I expected. 

There was an attitude, when the laws first passed, that gender equality would happen with generational change; that we’ve set the legal changes and we just have to wait for that to flush through the system. 

I noticed 10 years ago, when I became the Victorian Equal Opportunity and Human Rights Commissioner, that this was still the narrative — a sense that when the “dinosaurs die out”, gender equality would just happen, that “you just need to be patient and wait for change”. 

I had 20 years of being an employment lawyer in the leading corporate employment law practice in Australia [Herbert Smith Freehills], working for a cross section of significant employers. 

I was at the forefront of advising executives and boards of major organisations on what the relatively new discrimination laws required. 

Up until recently, there was a real focus on treating sexual harassment as an individual misconduct — it was not regarded as a broader systemic risk. 

Until last December, the Sex Discrimination Act prohibited sexual harassment, but the only consequences for sexual harassment arose when a victim of harassment brought a complaint. If that occurred, an employer could escape liability by showing they had taken reasonable steps to try to prevent the conduct. 

This created the legal incentive for employers to develop policies, conduct training and establish complaint procedures — all well-documented — so evidence of these actions can be produced as a defence to say the employer is not responsible when a worker is sexually harassed. 

There was no explicit requirement for employers to prevent sexual harassment occurring. 

Ironically, there was an incentive for employers to deter complaints or argue, if sexual harassment occurred, that it was not their fault. The law did not support a prevention mindset. 

What I now see is that we were prioritising actions we could prove we had taken. You have a policy in place, a paper trail of distributing it to staff, and attendance records of the training conducted. Even with those actions in place, I suspect very few of my clients went into the Christmas party season confident that they had eliminated the risk of sexual harassment. 

I tended to work for large organisations that had good intentions and sophisticated governance. 

The thinking was that this was an issue for HR, which only really became an issue for the board when it became public or involved an executive or board member, which caused a reputational risk.

Boards did focus on physical health and safety and they were looking at risks, but sexual harassment did not rate on the risk register.

National inquiry

When I conducted the National Inquiry into Sexual Harassment in Australian Workplaces, it was like a light bulb for me on why the law had not converted to the equality we were promised. 

The Respect@Work report found one in three workers had experienced sexual harassment in the previous five years, with young people at highest risk. 

Sexual harassment is very much a part of the working lives of too many workers in a country that prides itself on being fair and equal. Respect@Work also exposed the significant economic cost of sexual harassment: Deloitte Access Economics found in 2018 that workplace sexual harassment had a $3.5b cost to the economy. 

While many people still find those statistics surprising, they did not surprise me. 

Despite many years of employer action, I knew sexual harassment complaints were still very similar to those I’d seen in the 1990s. 

However, something I’d never really understood was the long tail of sexual harassment. 

Whether people had complained or not, it had affected their feeling of safety at work. 

As a lawyer, I had never truly understood that people carry those experiences for a long time, particularly if they’ve been poorly treated by their employers after their harassment. 

This is why one of the central recommendations of our Respect@Work report was a new positive duty, to shift the focus of employers towards preventing sexual harassment as the proactive goal. 

In late 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act was passed, introducing a positive duty on employers to prevent workplace sexual harassment, and expanded monitoring and enforcement powers for the Australian Human Rights Commission (AHRC). 

This new duty requires employers to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based discrimination and harassment, hostile workplace environments and victimisation. 

AHRC powers to assess compliance with the positive duty starts from December this year and boards need to be confident that their organisation is taking positive steps to prevent workplace sexual harassment. 

Another key recommendation of Respect@Work was for improved education of directors on their responsibilities regarding sexual harassment. 

I was impressed at how quickly the AICD responded to that recommendation. 

So, in 2023, I’m not going to have people tell me change will take time anymore — it will take action, including from boards. 

This article first appeared under the headline ‘What I've learned about Respect@Work’ in the July 2023 issue of Company Director magazine.

Five themes to drive change 

1. Boards need to set direction based on more than legal advice.

As a lawyer I am not for a minute suggesting organisations should break the law, but through the national inquiry I heard that boards and executives rely heavily on lawyers, and can hide behind them when out of their comfort zone. 

I heard of unnecessary technical legal investigation processes being used for complaints at the expense of the health and wellbeing of staff. CEOs and boards should take advice, but you take the decision. You have the bigger picture. 

You need to look at all the consequences of an action for your organisation. Whether you take the advice or hide behind it, boards must ask more questions and probe more deeply on the issues. 

2. Get data and facts into senior leaders’ hands.

Employers need to understand that sexual harassment affects productivity and their business. 

The reason senior leaders haven’t taken sexual harassment as seriously in the past is that they haven’t understood the harms, and they haven’t seen it as affecting their profit. 

Boards are now asking for better reporting on cultural factors to give them improved insight into the systemic factors affecting the workforce. 

This has benefits beyond sexual harassment, it can contribute to efforts to prevent discrimination, bullying, fraud and unethical conduct, and improve efforts towards diversity, recruitment, retention and innovation. 

3. A prevention mindset is a board responsibility.

Until recently, boards hadn’t seen themselves as being responsible for workplace sexual harassment. 

After events at AMP in 2020, the Australian Council of Superannuation Investors engaged me to lead the AHRC survey of the ASX 200 board governance of sexual harassment. 

The Equality Across the Board: Investing in workplaces that work report made eight recommendations for boards that have been incorporated into the AICD education modules. 

One standout lesson was that only 19 per cent of ASX 200 boards acknowledged primary accountability for the prevention and response to sexual harassment. 

The majority saw it as an issue for the head of HR. It would be a higher result now. 

Executives told me that when their board became interested in this issue it allowed the executive to place resources, energy and priority on preventing sexual harassment. 

They noted women on the board tended to be more informed about sexual harassment, asking more helpful questions. They also noted the voices of staff, customers and shareholders held more weight. 

4. Reframing this as a WHS issue is effective for boards.

Sexual harassment can cause physical and psychological harm to the person it is directed at, witnesses to the behaviour, broader work teams, families and friends. 

Risks of sexual harassment should be considered workplace hazards. It has got people out of the thinking that this is an individual misconduct issue to awareness that sexual harassment is a more systemic and cultural issue, with industry-wide drivers and risk factors. 

Thinking of sexual harassment as a WHS issue as well as a human rights issue has pushed boards to a more proactive, preventive mindset. 

5. Directors need to stay current on modern workplace experience.

Speaking to university chancellors and boards, I’ve observed that the executive experience of those who held such roles is often 10 or more years ago. 

People in top governance roles have a life experience in the workplace from a different era with different attitudes. It is a long time since they were the least powerful people in the organisation. 

They need to understand that society changes, new challenges emerge, entrenched problems need new responses — so the laws and boards need to adapt. 

Much of what the Sex Discrimination Act 1984 sought to overcome is still relevant. 

Directors need to stay current and understand that just because sexual harassment and discrimination isn’t happening to you, it’s still happening. The good news is that you are in a position to change this.

This article first appeared under the headline 'What I've learned about Respect@Work' in the July 2023 issue of Company Director magazine.