Do you have to let it Linger? What is a hostile working environment?

But I'm in so deep

You know I'm such a fool for you

You got me wrapped around your finger

Do you have to let it linger?

Do you have to, do you have to, do you have to let it linger?

Linger by The Cranberries

As part of the “Respect at Work” changes to the Fair Work Act 2009 (Cth) and Sex Discrimination Act 1975 (Cth), a number of changes were made in March 2023 to provide better protection for workers from sexual harassment and other forms of sex discrimination, harassment and unfair treatment in the workplace.  See our blog Don’t Call me Baby: What is your Board’s scorecard on sexual harassment for an overview of these provisions.

What is a hostile work environment?

One new change was the introduction of a provision regarding a ‘hostile work environment’.

In the Sex Discrimination Act, it is unlawful for a person to subject another person to a workplace environment that is hostile on the ground of sex.

A person (the first person) will subject another person (the second person) to a workplace environment that is hostile on the ground of sex if the first person engages in conduct in a workplace where the first person or the second person (or both) work, the second person is in the workplace at the same time or after the conduct occurs, and the conduct is found to contravene a ‘reasonable person’ test.

This test considers whether, having regard to all the circumstances, a reasonable person would have anticipated the possibility of the conduct resulting in a workplace environment being offensive, intimidating or humiliating to a person of the sex of the second person, by reason of the sex of the person or a characteristic associated with the sex of the person.

If a person considers that they have been subjected to a hostile workplace environment on the ground of sex, they can lodge a complaint with the Australian Human Rights Commission. If the matter cannot be successfully conciliated by the Commission, the person may make an application to the federal courts for determination.

The Australian Human Rights Commission provides some examples of potential hostile working environments where there are “sexually crude conversations, innuendo or offensive jokes.”  The key difference is that an employee can raise a complaint about such conduct even if the conduct was not specifically aimed at them.

Further, employers are expected to prevent offensive conduct within their workplaces perpetrated by external influences such as customers, patients, suppliers, contractors or members of the public.

If you, if you could return

Don't let it burn Don't let it fade

I'm sure I'm not being rude

But it's just your attitude

It's tearing me apart

It's ruining every day

Do you have to let it linger?

Do you have to, do you have to, do you have to let it linger?

It’s important to note that to meet the definition of a hostile work environment, it is different to an often used term “a toxic work environment”, although you can have both a toxic and a hostile work environment.

Many people talk about working in “toxic work environment” where there are negative behaviours that are essentially intrinsic in an organisation – such as favourtism, lack of organisational justice, high stress levels, lack of trust – and where people feel psychologically unsafe.  This is certainly a work health and safety issue, and should be addressed.  However, a “hostile work environment” for the purposes of the Sex Discrimination Act relates to conduct that results in a workplace environment being offensive, intimidating or humiliating by reason of sex.

In addition, in Queensland from 1 March 2025, all persons conducting a business or undertaking must have a sexual harassment prevention plan in place.  This plan must be in writing, accessible and understandable, state identified risks and control measures, describe the consultation that has occurred in relation to the plan and set out the procedure for reports of sexual harassment or sex or gender based harassment at work.  While this only applies to employers with workers in Queensland at this stage, it may soon apply to other states.

What can employers do?

As employers now have a positive duty to prevent sexual harassment, it follows that there is also a positive duty on employers to prevent a hostile work environment on the grounds of sex.

This means that employers have to shift from simply responding to behaviour and conduct that has occurred (which they still should) to focussing on proactively preventing such behaviours.  It should also be noted that work health and safety laws also expect this proactive behaviour as work health and safety laws expect employers to provide a safe working environment for its workers, so far as is reasonably practicable.

This is a whole of business strategy, rather than just an updated HR policy and a bit of training.  This involves looking at all of the risk and cultural factors within an organisation that affect one sex, to address this issue beyond simply surface level issues.  See our blog All I want for Christmas…is a well behaved workforce for suggestions on what employers can do in this space.

Don’t let poor behaviour linger in your workplace – employers must take action to prevent a hostile work environment.  With the Australian Human Rights Commission now able to take enforcement action, in addition to workplace health and safety regulators already able to take enforcement action, failure to do so may result in compliance notices, fines and damage to your organisation’s reputation.

But I'm in so deep

You know I'm such a fool for you

You got me wrapped around your finger

Do you have to let it linger?

Do you have to, do you have to, do you have to let it linger?

Oh, I thought the world of you

I thought nothing could go wrong

But I was wrong, I was wrong

Remotely Legal can assist employers and boards on all aspects of employment law, including advising on difficult people issues, reviewing policies and assisting with enterprise bargaining.  Remotely Legal can train your boards and management teams on how to deal with incidents and investigations.  Remotely Legal can also be your fully outsourced HR and people legal team.

RL Investigations, part of Remotely Legal, are a team of highly experienced and qualified lawyers and investigators, who can function as your independent, external investigation team providing fast, comprehensive and reliable investigation reports, workplace culture reviews and suggestions for organisational improvement. RL Investigations can also help your internal HR or investigation team to improve their investigations and assist decision makers in considering the right factors when making key decisions.

This blog is general advice only.  Please obtain legal advice in relation to your specific circumstances.  This blog was written by a human so please seek permission if you wish to copy any of it.