1. Sexual harassment at work
1. Sexual harassment at work
Experiences of sexual harassment can have profound implications for individuals, no matter their setting. Whether you are an executive or employee in the private sector, a public sector worker, or a university student, if you experience sexual harassment it is important to get informed about your rights, support available, and legal options.
If have been sexually harassed at work, you have options. Deciding what you wish to do about it can be informed by understanding:
- What is sexual harassment?
- Do employers have a duty to prevent it?
- Who can be liable for sexual harassment?
Understanding the legal framework that applies to sexual harassment in workplaces across Australia is important. It can illuminate how the interests of an employer may not align with the interests of the person harassed. It can lead to unfair outcomes.
If you have been sexually harassed at work, taking the time to get informed about these issues and your options can be a good first step. However, as with any legal issue, there is no substitute for getting professional legal advice as early as possible.
Sexual harassment is prohibited in workplaces and employers have a positive duty to eliminate it. Experiences of sexual harassment can have profound implications for individuals, no matter their setting. Whether you are an executive or employee in the private sector, a public sector worker, or a university student, if you experience sexual harassment it is important to get informed about your rights, support available, and legal options.
What is sexual harassment?
In Australia, different laws define the term sexual harassment. The term sexual harassment is often used in workplaces to refer to unwelcome sexual advances or behaviours that cause offence, humiliation or intimidation, in circumstances where such a reaction would occur to a reasonable person as a possible response.
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.
Acts that occur within a consensual relationship and with consent are generally not regarded as ‘sexual harassment’. Nor is conduct that is otherwise invited, mutual, or reciprocated. However, every situation requires consideration of the individual circumstances.
It is always important to have regard to all the relevant circumstances. While the subjective intention of a person may not be relevant to whether an act constitutes ‘sexual harassment’, it is possible for misunderstandings to occur or innocuous events to be misconstrued.
Prevention is a duty on employers
The Sex Discrimination Act 1984 (Cth) makes clear that an employer or person conducting a business or undertaking must take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct, including sexual harassment.
Numerous work health and safety laws across Australia impose duties on people conducting a business or undertaking to manage psychosocial risks. Sexual harassment poses a psychosocial risk that employers ought to eliminate or minimise.
Civil claims and enforcement action can follow for employers who fail to uphold their duty to prevent sexual harassment in workplaces.
The duties of employers – and the consequences of breaches – create powerful incentives to ensure that their workplace has appropriate policies and procedures in place to eliminate sexual harassment, as well as to act appropriately in response to any sexual harassment complaint.
Who can be liable for sexual harassment?
Sexual harassment in the workplace is unlawful. It may be committed by the owner of a business, managers, fellow employees, contractors, or people seeking to hold one of those positions.
It is not just the person who sexually harasses another who may be liable. Employers may also be vicariously liable for sexual harassment that occurs in a workplace if they have not taken all reasonable steps to prevent it.
So, if a person experiences sexual harassment in their workplace in Australia, it is reasonable to expect the employer to consider their own exposure to liability for its occurrence.
2. Options if you are harassed
2. Options if you are harassed
If you have been sexually harassed at work in Queensland, you have a range of options in how you may wish to respond to it. How people respond can be a personal decision and preferences can change over time. The options highlighted below as possible responses are not mutually exclusive and need not be followed in any particular order.
If you’ve been sexually harassed, the following may assist you:
- Keep records
- Get support
- Obtain legal advice
- Make a workplace complaint
- Lodge a civil law claim
- File a criminal law complaint
1. Keep records
Keeping a record of events can ensure important evidence is not lost, forgotten or destroyed. For example, text messages, emails and other documents can be importance sources of information when evaluating a sexual harassment claim.
Sometimes, people do not wish to make an immediate complaint about an incident. Or they may give someone the benefit of the doubt about something only to realise later it is relevant to explaining a course or pattern of behaviour.
By keeping records of anything that may be relevant to a sexual harassment complaint, even if currently you are not sure what you may wish to do, it can assist down the track.
2. Get support
If you have experienced sexual harassment it is important to get appropriate support. There are numerous potential sources of support:
- Family and friends who you trust
- Counselling support, including through employee assistance programs (EAP)
- Medical support
- Supervisors and managers at work
- Work health and safety representatives at work
- Union representatives
Many workplaces will have policies and procedures that outline particular supports offered in response to sexual harassment. However, some people not feel safe in seeking support through their workplace, as the person who sexually harassed them holds a senior position, for example. Confidentiality can also be a concern for some people.
It is important to understand that in some workplaces there may be an obligation to formally report or refer on information about sexual harassment.
3. Obtain legal advice
If you have been sexually harassed at work, it can unfairly and detrimentally affect you in a variety of ways. A lawyer can help you to understand how to protect your rights and advance your interests.
Obtaining legal advice that is protected by ‘legal professional privilege’ can allow people to ensure they are fully informed about their options in a confidential manner.
Sometimes, people are worried about the perception that may be created by a lawyer providing them assistance. It is important to reflect on why anybody should feel discouraged from seeking to protect their legitimate rights and interests, particularly when they have been wronged. Why should anybody who has experienced sexual harassment not be entitled to seek what the law provides? The question is especially important given sexual harassment has potential long-term consequences.
In contemplating whether to seek legal advice, people often undertake a quick and intuitive ‘cost vs benefit analysis’. Beliefs people have about costs and benefits can be wildly inaccurate. Sometimes, the easiest way to form an accurate picture is to pick up the phone, reach out to a lawyer, and get a clearer understanding of the potential assistance they can provide.
4. Make a workplace complaint
Sexual harassment can constitute serious misconduct. Substantiated complaints can result in disciplinary action being taken, up to and including summary dismissal. Moreover, professional disciplinary action can follow for certain regulated jobs and professions, such as doctors, nurses, lawyers, and teachers if a complaint is made to the relevant regulatory body.
Before making a complaint about sexual harassment to your employer, it can be beneficial to understand whether there are any applicable policies or procedures. Such documents can outline reporting expectations, processes that are followed, and information about confidentiality and disclosure.
If you make a workplace complaint, it can be important to understand how the issue may be handled and any avenues you may have to raise concerns. Common concerns include:
- Confidentiality of the complaint
- Directions to refrain from talking to colleagues about certain topics
- Delays in finalising investigations
- Potential bias and conflicts of interests
- Lack of transparency about findings and outcomes
If you make a complaint to your employer about sexual harassment, you should expect to be protected from victimisation and further harassment.
5. Lodge a civil law claim
If you have been sexually harassed at work in Queensland, you have the option of lodging a civil law complaint. Common complaints in response to sexual harassment include:
- Orders to stop sexual harassment
- Discrimination claims
- Personal injuries claims
A person who has experienced sexual harassment at work can apply to the Fair Work Commission for an order that it stop. For such applications to be made, the person aggrieved by the sexual harassment must still be connected to the workplace.
In Queensland, a person who experiences sexual harassment may seek compensation and other remedies through a discrimination claim. Sexual harassment can constitute discrimination based on sex or other protected attributes. In Queensland, a discrimination complaint of this kind may be made to:
This law firm assists people who have experienced sexual harassment at work to lodge claims in the Queensland Human Rights Commission or Australian Human Rights Commission.
In some cases where an injury has resulted, a person in Queensland may wish to pursue a claim for worker’s compensation or personal injuries compensation.
Strict time limits apply to civil law claims, so it is always prudent to seek legal advice about your rights and any applicable time limits as soon as possible.
6. File a criminal law complaint
Some instances of sexual harassment can constitute a criminal offence in Queensland.
The offences that may be relevant are broader than may be first realised. While offences such as sexual assault or unlawful stalking, intimidation, harassment or abuse may be the subject of complaints to police, sexual harassment may also be an offence under work health and safety laws in Queensland.
In Queensland, where there is or has been a family or domestic relationship, police may also apply for a domestic violence order if it is considered appropriate to do so. Individuals also can apply directly for a domestic violence order without the assistance of police if they meet the criteria for such orders.
3. Outcomes of harassment claims
3. Outcomes of harassment claims
Sexual harassment claims can be litigated in a number of ways. Due to the strict time limitation periods that can be involved, it is important to seek professional advice about issues of this nature as soon as possible.
It is common for people to ask or wonder, ‘how much compensation’ they are entitled to as a result of the sexual harassment they have experienced. The answer is not always easy to provide, as a range of variables impacts it. One simple way to begin to understand how compensation is decided is to assess past cases and judgments. Below is a table of publicly available case outcomes from across Australia, showing outcomes from cases involving claims under anti-discrimination laws. It is important to note that the list is not comprehensive, and many decisions are not publicly accessible, particularly where early negotiated settlements result.
| Case | Date | Compensation |
| Neil v Lee [2024] QIRC 093 | 24 April 2024 | Compensation ordered in amount of $50,607.10, which included $50,000 for general and aggravated damages and $607.10 for economic loss. |
| Taylor v August and Pemberton Pty Ltd [2024] FCA 1313 | 31 October 2023 | $140,000 in general damages for sexual harassment and $40,000 for victimisation. $15,000 in aggravated damages. Other amounts awarded for out-of-pocket expenses, past economic loss, and future economic loss. An order for interest on past general damages awas awarded at 2% per annum. |
| Higgins v Orchard [2022] TASFC 12 | 15 December 2022 | Compensation in the amount of $22,500, taking into account a settlement of $60,000 involving a second respondent to the complaint. |
| Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14 | 6 August 2021 | Compensation in the amount of $158,702.60, which included $130,000 for general and aggravated damages and $28,702.60 for economic loss. |
| Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107 | 30 April 2021 | Loss and damages calculated at $318.280.08. However, due to the compensation limit in NCAT, compensation in the amount of $200,000 was ordered to be paid in equal shares by Vitality Works Australia Pty Ltd and Sydney Water Corporation. |
| Hughes v Hill [2020] FCAFC 126 | 24 July 2020 | Compensation ordered in the amounts of $120,000 in general damages and $50,000 in aggravated damages. |
| Green v State of Queensland [2017] QCAT 008 | 10 January 2017 | Compensation ordered in the amount of $156,051, including a component of $70,000 for non-financial loss (pain, suffering, loss of enjoyment of life, offence, embarassment, humiliation and intimidation) |
| Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 | 15 July 2014 | Compensation ordered in the amount of $130,000 by way of damages. |
4. The benefits of legal advice
4. The benefits of legal advice
Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. It is important not to underestimate the impact sexual harassment can have on a person. This firm helps people who experience sexual harassment at work.
Dealing with sexual harassment is a serious matter. While there are multiple ways a person may seek to respond to sexual harassment, hiring a lawyer to assist you in considering your options may be a prudent decision for several reasons.
1. Legal expertise and knowledge
A lawyer brings extensive knowledge of employment and discrimination law and the legal frameworks governing workplace investigations and disciplinary processes, including with respect to sexual harassment claims. This expertise can help you understand your rights, ensuring that your decisions are legally sound and strategically effective.
2. Tailored and strategic assistance
Lawyers are skilled in assisting people to advance their interests. They can highlight procedural flaws and aggravating factors and identify evidence that supports your case. Their ability to structure complaints and claims can assist in showing why it is compelling and correct.
3. Navigating complex issues
The legal implications of sexual harassment claims can be complex. A lawyer can help you navigate this terrain, advising on the strengths and weaknesses of different courses of action. This includes understanding the potential outcomes, knowing when to negotiate for a settlement, and recognising when and how to escalate matters.
4. Profesional communication
Sexual harassment issues at work are inherently stressful. The way such issues can affect your engagement in the workplace, economic security, and mental health can be profound. A lawyer can alleviate some of this stress by handling communications with your employer and others, advising you on your rights, and providing a clear path forward. They ensure that your response is professional, respectful, and focused on resolving the issue constructively.