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Liability for discrimination and sexual harassment

Discrimination is against the law in all stages of employment, including recruitment, returning to work after injury or illness, dismissal and retrenchment. As an employer, you may be held legally responsible for discrimination in employment because of the actions of your employees.

Individual liability

An individual who discriminates against or sexually harasses another person in the workplace can be held responsible, and therefore legally liable, for their behaviour.

Employer liability

Employers can also be held legally responsible for acts of discrimination or sexual harassment by their employees or agents if they occur:

  • in the workplace, or 
  • in connection with a person’s employment. 

This is known as vicarious liability.

Examples of vicarious liability

Alex makes a complaint of racial discrimination after management knew about a problem but did nothing to prevent or respond to it.

Li-Huei unsuccessfully applies for a job as a receptionist with a large hotel. When she calls the human resources manager to ask why she did not get the job, she is told that the manager doesn’t want to employ a receptionist with an accent.

Alison is asked her age at a job interview and is then refused the position because the employer wants a younger person for the role.

Exception to vicarious liability

An employer may not be found vicariously liable if they can show that they have:

  • taken all reasonable steps to prevent discrimination, sexual harassment and victimisation from occurring
  • responded appropriately to resolve incidents

Complying with the positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible means employers may be less likely to be found vicariously liable for unlawful behaviour in their workplace.

Positive duty 

As an employer, you also have a positive duty to take "reasonable and proportionate measures" to eliminate discrimination, sexual harassment and victimisation as far as possible. This means you must: 

  • take positive action to prevent discrimination, sexual harassment or victimisation from occurring, and
  • put in place measures to respond to issues that do arise. 

The definition of reasonable and proportionate measures will vary from one workplace to the next, depending on the size, resources and nature of an organisation. However, reasonable and proportionate measures can include:

  • equal opportunity and anti-discrimination policies: so all managers and staff are aware of their rights and responsibilities
  • induction: so all new employees know about workplace policies and complaints procedures 
  • training and education programs: to help managers and staff identify, prevent and respond to workplace discrimination and sexual harassment
  • internal complaints procedures: to help resolve complaints of discrimination or harassment promptly, fairly and effectively
  • monitoring: so policies and complaints processes are actively followed in cases where discrimination and sexual harassment do occur.

To be successful, these initiatives need the strong and active support from senior management.

Review and assessment

Regular monitoring of the workplace environment and culture can provide valuable information, for example through staff surveys. This feedback can be used to update workplace equal opportunity policies and initiatives.

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