How To: Sexual Harassment Investigations

While many businesses implement relevant policies and procedures, and respect at work / culture-building training to avoid inappropriate workplace experiences and situations, sexual harassment still occurs within the Australian workforce.

A national survey conducted by the Australian Human Rights Commission shows that one in three workers have experienced sexual harassment at work in the last five years. The survey also revealed that reporting workplace sexual harassment is alarmingly low, at just 18%. While the data doesn’t show why these reports are so low, it’s suspected that this comes down to employees not feeling safe to voice their concerns and not trusting that their employer will handle the matter with appropriate care and concern.

Workplace sexual harassment poses a severe threat to the well-being, productivity and overall morale of a workplace, as well as the safety and security of all employees. Investigating sexual harassment in the workplace thoroughly and fairly to properly handle these situations is imperative. Conducting a fair workplace harassment investigation is critical for complainants and your entire organisation.

In this article, we will address how to investigate sexual harassment in the workplace, examples of sexual harassment at work, questions to ask during a sexual harassment investigation and more. Please remember that sexual harassment is a very delicate and sensitive topic; each case must be handled with care.

What is sexual harassment in the workplace?

Sexual harassment in the workplace is a term used to refer to any unwelcome conduct of a sexual nature that causes the person harassed to feel offended, humiliated or intimidated. Sexual harassment can range from unwanted sexual advances to lewd or crude jokes or comments.

Section 28A of the Sex Discrimination Act 1984 (Cth) defines sexual harassment as occurring when a person makes an unwelcome sexual advance, an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature in relation to another person in circumstances where a reasonable person (having regard to all the circumstances) would anticipate the possibility that the other person would be offended, humiliated or intimidated. 

Sexual harassment is a serious offence. If an employee is found guilty of sexual harassment in the workplace, it may warrant immediate termination.

If sexual harassment has been reported within your organisation, you must immediately conduct a thorough, sensitive and unbiased workplace investigation. If workplace sexual harassment is confirmed, the employer will be required to implement severe disciplinary measures, up to and including immediate termination of employment.

Sexual harassment investigations & impact on the wider business

Naturally, a situation that warrants a sexual harassment investigation is serious, shocking and sensitive - for all parties involved. Both the complainant and the respondent will be bound by strict confidentiality obligations whilst the matter is investigated to discover the facts of the case. Nonetheless, in our experience, it’s very unlikely that this process will not have some impact on the working environment. The culture in the workplace can become gossip-fueled and unproductive if these situations are not managed and communicated properly, at an appropriate time. This is similar to other incidents where there is a workplace dispute, or incidents that require mediation or other third party support.

HumanX HR Consultants are specialists in all disciplines of HR. Our teams are able to come in during these turbulent times, not only to investigate sexual harassment in the workplace, but also to support and guide your team through this time.

We can dig into the root causes of any issue that has led to any workplace investigation and develop a suitable HR strategy to change the culture in the workplace, evolve practices, behaviours and mindsets, all whilst supporting the infrastructure of your business and future proofing through documentation like HR policies and compliance requirements.

Being able to evidence a workplace’s efforts to prevent sexual harassment is critical due to the positive duty now placed on employers to eliminate workplace sexual harassment. 

Employers must take proactive and meaningful action to prevent sexual harassment, as well as sex discrimination, sex-based harassment, conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex, and preventing victimisation from occurring in the workplace or in connection to work.

Example behaviours of sexual harassment at work

Remember, anything that is inappropriate or that makes someone feel uncomfortable should be reported and investigated properly. The below are just some of the more common behaviours and actions that warrant a sexual harassment investigation:

• Suggestive comments or jokes
• Unwelcome invitations to dates or requests for sexual activities
• Unwelcome touching
• Staring or leering
• Emailing or texting pornography or sexual or crude jokes
• Asking intrusive questions about a person’s private life, sex life or body
• Sexually explicit pictures, posters or gifts
• Following, watching or loitering nearby a co-worker
• Displaying sexual imagery in the workplace
• Communicating in a sexual nature through social media or via text
• The use of sexual or suggestive nicknames for co-workers
• Insults or taunts of a sexual nature
• Actual or attempted rape or sexual assault
• Requests or pressure for sex.

If you are unsure about an accusation or report, we encourage you to consult with experienced investigators and HR experts.

How to investigate sexual harassment in the workplace

The importance of a procedurally fair sexual harassment investigation cannot be overstated. A sexual harassment investigation or workplace harassment investigation must follow specific guidelines to ensure fairness to protect the integrity of the investigation, the confidentiality of those involved, and ensure the appropriate outcome or actions are taken at the end.

These guidelines include maintaining confidentiality where possible, protecting the complainant from retaliation, providing a fair opportunity for all parties to present their accounts, and verifying facts through evidence and witnesses. Due to the sensitive nature of investigating sexual harassment in the workplace, it is highly recommended that you involve a third-party workplace investigator, such as the team at HumanX. You can ensure impartiality and professionalism by working with an unbiased external team rather than investigating in-house.

If your company receives word of workplace harassment, it’s important – not just for legal reasons, but also for morale and reputational reasons, and the safety of your employees - that you take accusations seriously and take prompt action. You will need to:

• Uncover the facts surrounding the alleged sexual harassment.
• Uphold procedural fairness by ensuring all parties are provided with the opportunity to recap the events and respond to allegations where relevant. From here, the employer can make a more informed decision based on the evidence gathered.
• Abide by Australian laws protecting the organisation from potential legal liabilities.
• Provide ongoing workplace cohesion by providing a fair and extensive investigation. This helps to ensure other employees know that your organisation takes sexual harassment seriously and will put in the appropriate effort to keep them safe.
• Prevent repetition of any of the present behaviours. A thorough investigation can identify systemic problems that can be addressed to avoid future occurrences.

How to investigate sexual harassment in the workplace

Initial assessment

The first step in a sexual harassment investigation is to conduct an initial assessment; this may come after a workplace complaint, or when the company otherwise becomes aware of the alleged harassment. This step includes reviewing the allegations and deciphering if the alleged behaviour could be considered sexual harassment. This decision will determine if an official investigation is launched.

This stage is also when it will need to be determined if the alleged harasser is suspended on full pay for the safety of the complainant and other employees. The complainant may also need to be provided with appropriate support, ensuring confidentiality measures are put in place to protect all involved.

Conducting a formal investigation

Next, the formal sexual harassment investigation can begin, including assigning impartial investigators to conduct interviews and gather evidence. This evidence can consist of emails, witness testimonies, and other relevant documentation that may help support or refute the sexual harassment allegations.

Develop allegations and give a fair hearing

Once all the evidence has been gathered, it is time to present concise allegations to the respondent. These allegations must specify the situation's who, what, when, and where. From there, the respondent must be given the opportunity to respond to the allegations in writing, be notified of an interview, and be given suitable time to prepare their responses and find a support person if needed.

Decision making

Once all the evidence has been gathered and all relevant employees have been interviewed, all the information gathered will be considered by the investigator and findings will be determined. The findings must be clearly communicated to both the complainant and the respondent.

Following this, appropriate actions based on the findings should be implemented. The subsequent disciplinary action should only be communicated with the party concerned. It is also crucial to remember that where allegations are substantiated as a result of a sexual harassment investigation, this doesn’t always result in termination.

HumanX can assist you by developing a comprehensive report detailing the process, evidence and outcomes. From there, other members of the HumanX team can help manage the outcome of the investigation, whether the ultimate decision is termination or not, as well as updating company policies and conducting workplace mediation to prevent future issues.

Questions to ask during a sexual harassment investigation

To conduct a fair and balanced sexual harassment investigation, asking the right questions during interviews with all involved employees is critical. Sexual harassment investigations require an immense amount of professionalism as well as a thorough understanding of workplace legalities. It is essential to work with an experienced team of investigators, like the team at HumanX, to ensure a fair, sensitive and effective investigation.

The types of questions required for your interview will depend on the specific case. Some sample questions that could be asked to a complainant for a broad case of sexual harassment include:  

• Can you provide a detailed account of the incident (including time, date and location)?
• Were there any witnesses to the incident?
• Do you have any evidence that could be used to support your account?
• Can you describe how the incident has affected you personally and professionally?
• Has this incident been reported to anyone else within the organisation before this investigation?
• Are you aware of any other incidents involving the accused individual?
• What outcome are you hoping for from this investigation?

Please keep in mind that these questions aim to gather detailed information about the incident and ensure that all perspectives are heard and treated with respect. Due to the nature of this investigation, these questions are required to be handled with the utmost sensitivity and respect for the employee(s) involved.

Dealing with the outcomes of a sexual harassment investigation at work

If allegations of sexual harassment are substantiated following an investigation, the organisation should take appropriate disciplinary action against the individual. Although not always the case, often the best course of action is termination of the harasser’s employment.  

We reiterate that to uphold this decision and to avoid any unfair dismissal claims, the company must have conducted a procedurally fair and sound investigation. The employer will need to provide written notice to the respondent outlining the findings of the case and the impending termination. A show cause meeting may also be appropriate. 

If it is determined that there was wrongdoing, but that the actions were less severe or intentional, or where mitigating circumstances or context impacts the situation, alternative disciplinary action may include verbal or written warnings. It is also important to request an apology for the complainant (if the complainant is comfortable in receiving an apology).

There are very rare occasions when harassment allegations are made out of retaliation, a feud or malicious intent and are completely fabricated. We cannot stress enough that this happens very rarely and any organisation owes all parties involved a full sexual harassment investigation following all allegations. 

However, where allegations are false or vexatious, disciplinary action may be taken against the complainant which can be as severe as termination. Again, just as with a case where allegations are proven to be true, this situation can create a sour working environment, breeding mistrust and resentment between individuals and groups.

Whatever the outcomes may be following an investigation into sexual harassment, there is likely a journey ahead. The ripple-effect of an investigation, especially if mishandled, can impact the workplace for the foreseeable future.  

HumanX is a human-first HR agency. We have all the necessary experience to manage the sensitive times and tough conversations required to protect your people and your future. But we also have the strategic insights and creative ideas that are going to ensure your teams not only weather this storm, but come out with a reinforced belief in the company they work for. 

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The information contained in this article is for general guidance only. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply in all circumstances or in particular situations. No person should act or refrain from acting on the basis of such information.