Australia: Sexual harassment: protect your business

Workplace Directions
Last Updated: 8 August 2011
Article by Tim McDonald

Increase in sexual harassment Complaints

According to the Australian Human Rights Commission (AHRC), 21% of all complaints it received in 2009/10 were under the Sex Discrimination Act 1984 ('Sex Discrimination Act'), and 88% of those complaints related to sex discrimination in the workplace. Sex discrimination includes sexual harassment, as well as, discrimination based on pregnancy, marital status, breastfeeding and family responsibilities.

By March 2011 sexual harassment complaints to the AHRC had increased by 50% since 2009 and constituted a third of all complaints under the Sex Discrimination Act.

What is sexual harassment?

Under the Sex Discrimination Act, sexual harassment in the workplace is any form of unwelcome sexual attention that is, offensive, humiliating or intimidating. There are three elements of sexual harassment:

  • The conduct was conduct of a sexual nature in relation to the other person
  • The conduct was unwelcome
  • The conduct occurred in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended.

Sexual harassment can be written, verbal, physical or take the form of pictures / photographs or electronic communications. It includes but is not limited to:

  • Unwelcome touching, grabbing or other physical contact
  • Comments that have sexual meanings
  • Asking for sex or sexual favours
  • Leering and staring
  • Displaying rude and offensive material, e.g. calendars, cartoons
  • Sexual gestures and body movement
  • Sexual jokes and comments
  • Questions about a persons sex life
  • Sex based insults
  • Written or electronic (email, sms, etc) communication of a sexual nature
  • Criminal offences such as obscene phone calls, indecent exposure and sexual assault.

Examples of conduct has been considered in the past by tribunals and Courts to constitute sexual harassment has included but is not limited to:

  • Writing a letter containing a declaration of love and implicit proposal for sexual intimacy including marriage and children
  • Sending SMS messages of a sexual nature. A manager told an employee that he had dreamed about her, before slapping her on the bottom. The manager then sent an SMS to the employee that referred to 'putting his hands up her skirt and grabbing her on the arse'. The store manager claimed that this message was just 'a joke'
  • Intimate pre-employment interview questions about the Applicant's sexual life
  • Sexually explicit comments written on walls and equipment using her name, lewd magazines and posters with nude and partially clad women throughout the workplace, derogatory sexual comments made to her and about her in her hearing
  • Sexually explicit comments about a previous employee during a preemployment interview, providing money to purchase underwear, requiring lingerie to be bought, referring to her breasts while making a comment about 'like to chew on those', physical touching, offers of massage
  • Pinching a female's bottom, offers of massage and massaging, comments of sexual nature about himself and her sexual life
  • Asking personal questions about her sex life, tales of his sex life, touching and licking her leg, rubbing his genital area and making comments about 'coming' and making sexually explicit requests on the type of clothing he wanted her to wear.

Who is at risk in your workplace?

Sexual harassment complaints usually involve alleged harassment by other employees or supervisor / manager(s) against another employee(s). However, sexual harassment against non-employees in connection with work is also unlawful including sexual harassment of agents, contractors, and prospective employees.

Sexual harassment in employment can occur both at the workplace or away from the place of work where there is a connection to work (examples might include; social functions, Christmas parties, after work drinks, work related travel, etc).

Both males and females can be the victims of sexual harassment at work. According to the AHRC, sexual harassment disproportionately affects women with 1 in 5 and 1 in 20 men also report experiencing sexual harassment in the workplace at some time.

An employers liability

Employers can be held vicariously liable for the actions of their employees or other in the workplace in sexual harassment complaints, unless they can demonstrate 'all reasonable steps' have been taken to prevent the unlawful harassment from occurring.

All reasonable steps are not defined in the Sex Discrimination Act, but is determined by the courts on a case-by-case basis depending on the size and resources of your organisation.

How can I best protect my business?

It is recommended that employers take a proactive approach to prevent harassment and reduce their vicarious liability in the event of a sexual harassment claim against them or their employee(s). In particular:

  • A written policy which clearly identifies and prohibits sexual harassment and provides a complaints procedure for investigating complaints
  • Regularly train staff of all levels about the policy and distribute and promote it regularly through different communication channels
  • Obtain high level support from all levels of management including the CEO and line managers for the policy and strategies to prevent and address discrimination and harassment if it was to occur
  • Review the policy to ensure it is operating effectively and contains up to date information on a regular basis
  • Ensure employees are aware that conduct which constitutes sexual harassment will result in disciplinary action up to and including termination of employment through contracts of employment or policies and procedures as appropriate
  • Prohibit any offensive, explicit or pornographic calendars, literature, posters and other materials from the workplace
  • Create, train and promote email / computer use and electronic communication policies including appropriate use of mobile devices and smart phones in respect of both work related communication (between employees) and communication with others that is in connection with employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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