December 2021 Building a preventative culture This approach means that employers are only held accountable for the steps they took to reduce the likelihood of discrimination or sexual harassment occurring after an unlawful incident has already occurred and a claim has been made. Given the low number of employees who come forward about discrimination and sexual harassment this is not an effective mechanism to ensure preventative steps are taken.82 Cooper pointed out that many employers ‘want to do the right thing’, and some are ‘proactively taking steps to prevent unlawful behaviour in their workforce’, but given the likelihood of a claim is low, compliance with equality laws might be given ‘a low risk rating’ on a risk matrix, ‘ensuring it’s not something significant time or resources will go into’.83 Moreover, Legal Aid NSW suggested that, because employers can already be held vicariously liable for the discriminatory actions of their employees when they fail to take all reasonable steps to prevent discrimination, the imposition of a positive duty therefore ‘would not greatly increase the legislative burden on individuals and organisations’.84 In the Respect@Work inquiry, the Commission concluded similarly that, As Australian employers already have responsibilities to ensure they are not held vicariously liable under the Sex Discrimination Act, as well as positive duties under WHS laws, … this would not create a substantially new or increased burden for employers.85 72 FREE AND EQUAL An Australian Conversation on Human Rights