What is sexual harassment?
If you are dealing with a sexual harassment claim or issue, it is essential to understand the definition of ‘sexual harassment’ in Australia. Across Australia, there are different laws that define sexual harassment.
One definition of ‘sexual harassment’, found in section 28A(1) of the Sex Discrimination Act 1984 (Cth), states:
Meaning of sexual harassment
- For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
- the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
- engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
It requires an assessment of all relevant circumstances, including the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed. It also requires consideration of the relationship between the person allegedly harassed and the person who is accused of making the advance or request or who engaged in the conduct.
Under the Sex Discrimination Act 1984 (Cth), the meaning of “conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
A similar definition of sexual harassment is found in section 119 of the Anti-Discrimination Act 1991 (Qld), which applies to Queensland-based issues and complaints brought under its anti-discrimination laws.
Generally, Australian laws define sexual harassment as involving:
- Unwelcome conduct of a sexual nature;
- The conduct leaves the person feeling offended, humiliated or intimidated; and,
- The reaction of the person is reasonable in the circumstances.
If any part or element of the meaning of sexual harassment cannot be established, then the allegation cannot be substantiated.
Examples of sexual harassment
Seeing examples of what may be sexual harassment assist to illustrate the types of behaviours intended to fall within the meaning of ‘sexual harassment’. Examples of sexual harassment are given in the Anti-Discrimination Act 1991 (Qld), which includes:
- physical contact such as patting, pinching or touching in a sexual way;
- unnecessary familiarity such as deliberately brushing against a person;
- sexual propositions;
- unwelcome and uncalled for remarks or insinuations about a person’s sex or private life;
- suggestive comments about a person’s appearance or body;
- offensive telephone calls of a sexual nature; and,
- indecent exposure.
The above illustrates that sexual harassment can be perpetrated in a variety of ways. However, for that same reason, there will be instances where a sexual harassment complaint is made wrongly or unfairly due to a misunderstanding about the context of a person’s conduct, or because in the absence of such context, innocuous events may be construed as sexual harassment. While there are many instances where there are disputes about what was actually said or the importance of some broader context that is relevant to what may have occurred, sometimes there is simply no room for interpretation.
Due to the implications for anyone facing a sexual harassment complaint, it is often the case that a formal workplace investigation into the allegation will take place prior to any decisions being made. For that reason, it is critical for anybody facing allegations of this nature to understand their fundamental rights and responsibilities.
Who can be liable for harassment?
Under the Sex Discrimination Act 1984 (Cth), sexual harassment in the workplace is unlawful. Sexual harassment may be committed by the owner of a business, managers, fellow employees, contractors or people seeking to hold one of those positions. Under amendments in 2011, it is also unlawful for a person to sexually harass another person in the course of providing or seeking, or offering to provide or receive, goods, services or facilities. This amendment increased the scope of how sexual harassment may occur in the workplace.
So a person who sexually harasses another person may act unlawfully under sexual harassment laws (such as the Sex Discrimination Act 1984 (Cth)), which can give rise to liability under civil claims. Some serious instances of sexual harassment may also lead to criminal complaints, such as where a sexual assault or an indecent exposure occurs.
Employers may be vicariously liable for sexual harassment that occurs in a workplace unless they have taken “all reasonable steps” to prevent it. This is because the Sex Discrimination Act 1984 (Cth), as well as other sexual harassment laws across states and territories in Australia, contains laws making employers vicariously liable. The existence of vicarious liability creates a powerful incentive for employers to ensure that they have appropriate policies and procedures in place to minimise the risk of sexual harassment occurring in their workplace, as well as to act in relation to allegations of sexual harassment.
Contesting unfair harassment claims
There are several actions an employee may take to challenge unfair sexual harassment allegations. This includes:
- Responding to a workplace investigation into a sexual harassment claim;
- Utilising dispute or resolution procedures as provided in a relevant modern award, enterprise agreement, employment contract, or the policies and procedures of the workplace;
- Filing an unfair dismissal claim in the Fair Work Commission;
- Filing a general protections claim in the Fair Work Commission;
- Contesting a discrimination claim in anti-discrimination commission or tribunal, such as the Queensland Human Rights Commission (QHRC) or Australian Human Rights Commission (AHRC); or,
- Filing a claim in a court, such as for breach of contract or in tort.
Disputed sexual harassment claims can create legal, financial and reputational risks to all concerned. It is the reason why business operators, executives and employees dealing with a sexual harassment claim must be mindful of the risks involved in resolving such issues.
What rights exist for respondents?
The rights that exist for respondents to workplace sexual harassment claims are significantly influenced by industrial awards, enterprise agreements, employment contracts, as well as workplace policies and procedures. Responses may also be influenced or managed by professional or regulatory bodies, as well as criminal law constraints. Where an employee may face discipline for sexual harassment at work, they typically have rights relating to the following:
- procedural fairness
- reasonable accommodations
- employee support
- health and safety rights
- self-incrimination privilege
- confidentiality considerations
People may ask, what does an unfair investigation or disciplinary process look like? Common concerns include:
- Bias or perceived bias from the investigator / decision-maker;
- Conflicts of interest between participants and the investigator / decision-maker;
- Failure to follow relevant policies, procedures and industrial instruments;
- Vague, unclear and unparticularised allegations;
- Changes to the allegations or investigation without explanation;
- Lack of transparency regarding the evidence gathered;
- Failure to disclose the workplace investigation report;
- Failure to give adequate notice before responses are required;
- Directions to not communicate with potential witnesses;
- Denial of access to a support person;
- Delays in progressing or finalising the investigation; and,
- Omission to investigate issues raised by a respondent.
If you are dealing with a workplace sexual harassment issue and seek to obtain legal advice, contact Anderson Legal for a fixed-price initial consultation to get personalised advice about your situation.