More and more companies are waking up to the fact that issues like sexual harassment, bullying, and discrimination aren’t just moral or legal headaches—they’re real business risks. These problems can tank a company’s reputation, kill productivity, and make attracting or keeping talent tough. Yet, despite this growing awareness, we keep seeing headlines about sexism, misogyny, and harassment in workplaces around the world.
New “positive duty” laws have been introduced in Australia and the UK to transform workplace culture. These positive duty laws represent a major cultural shift. Instead of just reacting to incidents of workplace sexual harassment and sex discrimination, companies are now required to actively prevent these behaviors from happening in the first place.
This shift from reactive to proactive is crucial if we’re serious about creating workplaces where people genuinely feel safe and respected. But the real challenge is meeting these positive duty obligations in a way that fosters long-term cultural change.
This article dives into how organizations can help meet these positive duty obligations and create safer workplaces.
Sexual harassment in Australian workplaces: The facts
Every five years, the Australian Human Rights Commission surveys the prevalence of sexual harassment in workplaces across Australia. The 2022 survey found that one in three Australian workers had experienced sexual harassment at work in the past five years. Most of these incidents were carried out by men, often in repeated and long-term cases.
Underreporting remains problematic. Fewer than one in five people who experience harassment formally report it. Of those who do, about a quarter saw no consequences for the harasser. Sexual harassment also affects some groups more heavily:
- 46% of individuals identifying as LGBTQI+ reported experiencing harassment.
- 70% of people with intersex variations and 56% of Indigenous Australians faced harassment.
- 48% of individuals with disabilities reported harassment.
The survey highlights that harassment is often about power and control. A lack of gender balance, low diversity, and hierarchies in the workplace exacerbate this issue. Additionally, workplaces with male-dominated environments, alcohol in work settings, and remote work setups can heighten these risks.
Understanding the Positive Duty laws
In 2020, the Australian Human Rights Commission’s Respect@Work Report found that the current legal and regulatory framework to combat sexual harassment was ineffective, with rates of sexual harassment in the workplace increasing and low levels of reporting. The Report made 55 recommendations to provide the government, workplaces, and supporting organizations a roadmap for better practice in addressing workplace sexual harassment.
In November 2022, the cornerstone recommendation of the Respect@Work Report – a positive duty for employers and PCBUs to eliminate discriminatory conduct under the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) was finally implemented.
The new positive duty requires that an employer or person conducting a business or undertaking (PCBU) must take reasonable and proportionate measures to eliminate as far as possible:
- Sex discrimination
- Sexual harassment
- Sex-based harassment
- Hostile workplace environments and
- Victimization
It is important to note that the positive duty under the Sex Discrimination Act extends to protecting employees and workers from unlawful discrimination perpetrated by third parties, such as members of the public and clients.
The Australian Human Rights Commission is the regulator for the positive duty. It can commence an inquiry into non-compliance and issue compliance notices that can be enforced by the Federal Courts.
Meeting Positive Duty obligations: Key actions for organizations
The positive duty obligation requires practical, proactive measures that go beyond a policy update.
The Australian Human Rights Commission has developed a positive duty compliance framework consisting of seven standards and four guiding principles.
Here are some key steps organizations should take to drive meaningful cultural change and ensure compliance.
1. Brief the board and senior leaders on Positive Duty.
The Australian Institute of Company Directors recommends that businesses engage experts to conduct briefing sessions on positive duty for boards and senior management. This knowledge empowers leaders to champion a proactive approach to preventing harassment across the organization.+
2. Engage workers to identify risk factors.
Businesses should consult directly with employees to effectively prevent workplace sexual harassment. Gathering insights from workers can help identify specific circumstances or areas that may increase the risk of harassment, allowing organizations to tailor their prevention strategies.
3. Set clear standards of behavior.
Develop a respectful workplace behavior policy that is clear, accessible, and consistently communicated. This policy should educate all employees, including leaders and managers, on expected standards of behavior, clarify what constitutes unlawful conduct and its consequences, and outline everyone’s rights and responsibilities.
4. Build a ‘speak up culture’.
One of the biggest challenges in addressing workplace issues is underreporting. Many stay silent out of fear, thinking the issue isn’t serious enough or lacking trust in HR. That’s why fostering a strong speak-up culture is essential: when employees feel safe to raise concerns, leaders can address issues early. Offering multiple reporting channels, including anonymous options, helps encourage reporting. I recently launched SafeSpace@elevate, Australia’s first trauma-informed reporting and support platform, to empower employees to speak up and allow organizations to mitigate risks early.
5. Develop a Prevention and Response Plan.
Identifying risks is only the beginning—businesses need a clear prevention and response plan. Outline specific measures to prevent incidents from occurring and establish an effective response protocol should an incident arise.
6. Invest in quality education and training.
Comprehensive, ongoing training for all staff, including leadership, is essential. Quality training ensures everyone understands their obligations, fosters a culture of safety, and helps build trust.
7. Adopt an intersectional approach.
Intersectional discrimination is a key driver of workplace sexual harassment, as it reveals how multiple aspects of a person’s identity—such as race, ethnicity, sexual orientation, and disability—intersect to create unique challenges. For instance, a woman who is also a migrant and LGBTQI+ may face compounded discrimination, impacting her experience and access to support. An intersectional approach allows organizations to create inclusive, tailored measures that go beyond one-size-fits-all solutions, ensuring that policies and support systems address the varied and nuanced needs of all employees.
About the Author:
Prabha Nandagopal
Prabha, founder of Elevate Consulting Partners and SafeSpace@elevate, is a leading human rights lawyer. Prabha played a key role in developing the new Australian positive duty to eliminate workplace sexual harassment and discrimination and was a senior legal advisor to the Respect@Work National Inquiry in 2020.
