Sexual Harassment

What is ‘sexual harassment’ in the workplace?

The Sex Discrimination Act 1984 (Cth) defines sexual harassment as:

1. Unwelcome sexual advances;
2. Unwelcome requests for sexual favours; and
3. Any other unwelcome conduct of a sexual nature,

in circumstances where a reasonable person, having regard to all the circumstances would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Examples of sexual harassment may include:

1. Inappropriate or unwanted touching;
2. Sexually suggestive taunts or remarks; or
3. Inappropriate questions about a person’s body.

Sexual harassment in the workplace isn’t strictly limited to a place of work, it also includes sexual harassment that occurs at work-related activities or can come from colleagues, managers or customers and clients.

There are a number of ways that an employer may be found to be legally liable for sexual harassment occurring in the workplace. For example, an employer may be liable:

If they cause, instruct, aid or permit another person to engage in sexual harassment (known as accessory liability), under the Sex Discrimination Act 1984 (Cth);

For any sexual harassment committed by any other employee (known as vicarious liability), under the Sex Discrimination Act 1984 (Cth);

If the employer takes any adverse action against an employee to prevent an employee exercising a right of making a complaint of sexual harassment, under the Fair Work Act 2009 (Cth);

For breaching an express or implied term of an employment contract; or

For failing to maintain a safe workplace, under the common law or the Work Health and Safety Act 2011 (Cth) (or equivalent state or territory law).

Can my employee claim compensation for sexual harassment?

Yes. Employers can be ordered to pay compensation to employees who have been sexually harassed in the workplace for anxiety, depression, and other psychological effects caused by sexual harassment. Employers can also be made to pay compensation for economic loss if an employee chooses to leave their employment because of the harassment.

What can I do to prevent sexual harassment occurring in my workplace?

The AHRC provides various guides to help employers understand and meet their legal obligations to employees in relation to sexual harassment. You can find this helpful information here.

You should also have an accessible and simple complaint process available for employees to report sexual harassment both informally and formally, anonymously and confidentially, including a list of information on support services available.

Having an effective complaint process can also help to identify ways to improve your workplace procedures and policies. It can also help avoid complaints to external organisations and from employees taking legal action against you.