Sexual harassment is legally defined as unwelcome sexual advances and conduct that would make a person reasonably feel humiliated, intimidated, or offended. According to a 2022 national survey commissioned by the Australian Human Rights Commission, sexual harassment in the Australian workplace is a significant problem. This survey found that 77% of workers have experienced sexual harassment while at work, with half of these incidents involving recurring and persistent behaviour. Despite this high percentage, less than twenty per cent of these incidents were reported to the employer. Notably, only a third of workers think their organisation is doing enough to prevent this type of conduct from occurring.
Legislative provisions
Sexual harassment in the workplace is prohibited across Australia under both the Fair Work Act 2009 and the Sex Discrimination Act 1984. When someone is subject to such harassment, they can complain under the Fair Work Act to the Fair Work Commission, or under the Sex Discrimination Act to the Australian Human Rights Commission. Each state has its own supplementary legislation that sets out a procedure for managing sexual harassment in the workplace. For instance, in Queensland, the Anti-Discrimination Act 1991 provides for complaints to be made to the Queensland Human Rights Commission, while in New South Wales the Anti Discrimination Act 1977 allows for complaints to be made to Anti-Discrimination New South Wales.
Defining sexual harassment
Under the federal Sex Discrimination Act, sexual harassment is defined as conduct that is unwanted and likely to make the recipient uncomfortable. The conduct does not need to be continuous or repeated to constitute harassment. The definition enumerates specific prohibited conduct that, according to the 2022 national survey, continues to be problematic in the Australian workplace:
- unwanted physical contact (experienced by 26% of female workers and 11% of male workers);
- unwanted familiarity and suggestive language (experienced by 40% of female workers and 14% of male workers);
- leering or prolonged staring (experienced by 30% of female workers and 8% of male workers);
- making intrusive remarks about an employee’s personal life or body (experienced by 32% of female workers and 14% of male workers);
- sharing or displaying pornographic or sexually explicit material; and
- unwelcome romantic advances.
To constitute sexual harassment, the conduct must be something that would cause a reasonable person to be offended, humiliated or intimidated. Of course, interpretations of behaviour may well vary from situation to situation, but it is important to remember that the intention of the alleged harasser is immaterial.
Vicarious liability
Workers are sometimes afraid to come forward with a sexual harassment claim because they fear they will face hostility from their employers or even unfair dismissal. While this is a reasonable fear, employees should know that their employer has an obligation to protect them from sexual harassment in the workplace. In fact, employers can be held legally responsible for sexual harassment that occurs in the workplace or in connection to someone’s employment, such as at a conference or retreat. For instance, in the case of Leslie v Graham [2002], an employer was found vicariously liable for sexual harassment that occurred in the accommodation shared by employees while at a work conference.
In order to minimise vicarious liability, employers must demonstrate that they have taken reasonable steps to prevent harassment and respond appropriately to resolve harassment incidents that do occur. What constitutes “reasonable” steps is different for a small business and a large corporation. An employer should take the steps that are reasonable within the organisation’s available resources, and in light of the type of work, the composition of the workforce, and the culture of the organisation. An employer should also consider any previous incidents of harassment, levels of employee supervision, provisions in industrial awards and agreements, and other relevant factors, such as working hours, and geographical isolation, when determining what steps to take to deter harassment.
Criminal offence
Sexual harassment in the workplace may rise to the level of a criminal offence. For example, if someone sexually assaults an employee while they are at work, the worker can make a sexual harassment complaint, but can also potentially report the offence to police. In NSW, the Crimes Act 1900 contains a range of sexual offences, including sexual assault, sexual touching, and assault with intent to have sexual intercourse. Sexual touching is unwanted touching of a person’s body, such as kissing or intentional touching of breasts, bottom, or genitals. People often believe that there must be physical injury or violence to indicate sexual assault, but the absence of violence does not equate to consent. Consent must be given freely and voluntarily, and cannot be coerced, forced or tricked. Consent can also be withdrawn before or during the sexual activity. The maximum penalty for this offence is imprisonment for five years.
Our employment lawyers can help employees claim compensation for lost income, distress and pain and suffering incurred because of sexual harassment in the workplace. We can also help employers deter sexual harassment in the workplace, or respond to complaints. Please get in touch with Taylor Rose on 1800 491 469.
