Toxic workplace culture can lead to sexual harassment claims

By Lauren Drummond on March 5th, 2018


The recent dismissal of an actor employed to play a leading role in the musical American Idiot highlights the potential liability for an employer that permits or condones a working environment or workplace culture that is toxic for female employees.

Failing to address these types of issues may result in an employer being directly or vicariously liable for unlawful sexual harassment or sex discrimination.

It was reported that Linden Furnell was dismissed for breaching the production company’s “Statement of Zero Tolerance to Inappropriate Behaviour” policy after the actor made a crude comment in relation to menstruation to a female co-star.

The production company’s response may appear harsh and it is unclear whether Mr Furnell intends to challenge the decision. However, the case is a recent example of the importance of addressing these types of behaviours in the workplace.

In particular, a culture that makes female employees uncomfortable or excluded in the workplace may give rise to potential exposure under anti-discrimination laws. Employers must take reasonable steps to eliminate this type of behaviour from the workplace.

Not a one-off incident

That a spate of similar allegations have been made across the Australian entertainment industry, such as the recent complaints involving actor Craig McLachlan, suggest it is a broader problem for the industry and therefore the zero-tolerance approach by the American Idiot producers was justified.

An early and extreme example of the effects of a toxic workplace culture is a 1994 decision of the Equal Opportunity Tribunal of Western Australia, Horne v Press Clough Joint Venture.

Two women were employed as trade’s assistants for a company constructing an offshore platform. They were the only women working on a site of more than 600 men. The worksite had soft-core pornographic posters displayed prominently around the offices. The women were subjected to further and more explicit pornography after they made a complaint.

The situation eventually became unbearable, particularly after degrading posters were plastered all across a room that they were required to clean as part of their duties. The material had been placed there deliberately to offend the women.

As a result of this treatment, both women left their jobs and sought counselling.

In subsequent legal proceedings, the employer and the union were held liable and were required to pay a total $92,000 in damages.


The two women in this case were never touched, propositioned or harassed by a particular individual. However, they suffered severe, long-term distress and humiliation because of their working environment.

It has been accepted that anti-discrimination legislation protects individuals from the effects of a hostile working environment, even in circumstances where the conduct is not specifically directed at an individual. It has been stated:

“the presence in a workplace of sexually offensive material which is not directed to any particular employee may still constitute sexual harassment where a hostile or demeaning atmosphere becomes a feature of the workplace environment” (G v R and Department of Health, Housing and Community Services).”

However, later cases have identified the importance of the requirement that the hostile and demeaning atmosphere “be a feature of the workplace environment”. This is because under the legislation, sexual conduct must be directed to a particular person.

If a hostile or demeaning atmosphere had not become a feature of the workplace environment, it would be “very difficult to establish that conduct of a sexual nature not directed to a particular employee [was] conduct in relation to that employee”.

Ground rules

It is clear that with the current media focus on workplace attitudes towards women (#metoo movement and Harvey Weinstein, the allegations against former Melbourne Lord Mayor Robert Doyle), employers need to take appropriate steps to ensure that female employees are protected from antisocial behaviour or have access to appropriate processes to complain about such behaviour. It is important for employers to:

  • have in place a robust sexual harassment policy, which includes a complaints process;
  • take appropriate remedial action to deal with complaints of sexual harassment and address antisocial behaviour;
  • undertake regular training to reinforce the policy and ensure that employees understand their rights and obligations pursuant to the policy; and
  • enlist managers to model appropriate behaviour and create positive working culture.

That can be a huge task for companies that don’t have the necessary policies and procedures in place or know how to create them. The Employment Law Practical Handbook chapters on Discrimination (D1), Sexual Harassment and Victimisation (S2) and Bullying (B1) are a great place to start to find out what your legal duties are to employees and how to go about protecting them and your business from inappropriate workplace behaviour.

Written in plain English by the employment law experts at Holding Redlich, the 70-plus chapters have the A-Z of employment covered.

Take an obligation-free trial of the Employment Law Practical Handbook today and proactively protect your business from any expensive claims.


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