Types of Sexual Harassment

Sexual harassment is an unwelcomed experience of a sexual nature that is typically done by one person (or group of people) against another person (or group of people). If you experience sexual harassment, you may feel vulnerable, embarrassed, violated, confused, or in disbelief, and unsure about what to do next. This experience can occur in public, in private or in the workplace and unfortunately still occurs quite often with one in three workers experiencing sexual harassment in the workplace. In this article, we explain what sexual harassment is, types of sexual harassment and laws for protection against sexual harassment.

Verbal sexual harassment

What is Sexual Harassment?

Sexual harassment is unwelcome sexual behaviour which offends, humiliates or intimidates. It occurs when one person makes unwelcome sexual advances, requests for sexual favours, or engagements in other unwelcome conduct of a sexual nature towards another person. It includes making a statement of sexual nature to the person, or in the presence of a person, whether the statement is made orally or in writing.

Sexual harassment can take many forms. It can be overt, covert or subtle. It can be repeated or a one-off incident. Sexual harassment can happen in person, over the phone or online – including via social media.

Factors such as race, ethnicity, religious beliefs, class, disability, age, migration status, or being Indigenous can impact how a person experiences sexual harassment. The intention behind the behaviour is not relevant in determining whether it is sexual harassment.

What Are The New Sexual Harassment Laws in Australia?

In December 2022, a new positive duty was introduced Under the Sex Discrimination Act 1984 that imposes all organisations and businesses in Australia with a legal obligation to take ‘reasonable and proportionate measures’ to prevent relevant unlawful conduct from occurring in the workplace or in connection to work. The Australian Human Rights Commission (AHRC) refers to this conduct as ‘relevant unlawful conduct’. The positive duty was a key recommendation of the AHRC Respect@Work Report.

All businesses and organisations in Australia, regardless of their size, have obligations under the Sex Discrimination Act and must fulfil this positive duty. The positive duty requires a proactive, rather than reactive, approach to actively preventing workplace sexual harassment. This involves addressing the root causes of gender inequality and power imbalances. By collecting and analysing data on the prevalence of sexual harassment, employers can identify emerging trends and risks. This allows organisations to customise their responses, manage risks effectively, and track performance.

The new sexual harassment laws are an expansion of the Sexual Discrimination Act 1984 and came into effect on 6 March, 2023. From that date forward, the employer can be found liable of breaching the new sexual harassment laws as it is their positive duty and obligation to stop it from happening in the first place. This has created a new layer of protection by mandating accountability and proactive measures as opposed to turning a blind eye or being in denial of negative events that your workforce might be subjected to. Employers have a responsibility to eliminate, as far as possible these unlawful behaviours from occurring:

The new laws were created to protect any type of worker including employees, contractors, work experience students, volunteers, interviewees and persons conducting a business or undertaking. These new laws not only aim to prevent this type of behaviour from happening in a workplace, they make it illegal.

Types of Sexual Harassment

Sexual harassment is unacceptable no matter what the setting. Understanding what constitutes sexual harassment and the different types of sexual harassment can help recognise if it is happening. Broadly speaking, there are four main types of sexual harassment. In any of these situations if the the victim feels uncomfortable, intimidated or humiliated, sexual harassment has occurred.

Verbal sexual harassment

Verbal sexual harassment occurs when behaviour of a sexual nature is expressed out loud either to a person directly or within ear shot of a person, or about a person. Verbal sexual harassment can come in many forms, including inappropriate jokes, innuendos or comments about a person appearance, body, outfit or sexual preferences. This may also involve discussing a erotic dream or hypothetical sexual scenarios.

Examples of verbal sexual harassment:

  • Making jokes about someone’s body, sexual activities, or telling sexual stories
  • Asking someone on a date repeatedly even though they have said no
  • Asking questions that are personal about a person’s body or private life
  • Using belittling language about the person to make them feel intimidated or disrespected
  • Spreading rumours about a person and making false statements about their sexual activity or private life.

Non-verbal sexual harassment

Non-verbal sexual harassment can sometimes be a little harder to confidently know that it has occurred. It can include unwanted gifts, invading a person’s personal space like sitting or standing too close to someone, persistent staring and smiling, unnecessary and repetitive touching and graphic gestures. Non-verbal sexual harassment can also include sending unsolicited sexual images, sending inappropriate work emails, and text messages that are suggestive or sexually explicit.

If you are feeling like someone is always around and/or looking you up and down, and just generally making you feel uncomfortable due to unwanted attention, this could be deemed non-verbal sexual harassment.

Examples of non-verbal sexual harassment:

  • Looking someone up and down or staring at them for long periods
  • Sending unwanted gifts, either sex-based or not, is an unwelcome behaviour
  • Invading a person’s personal space by standing too close or constantly sitting next to them when it is unnecessary
  • Making graphic sexual gestures like licking lips, or pointing to intimate parts of the body while looking at a person
  • Stalking either online or in person which involves unwanted attention by following or repeated contact is a form of non verbal sexual harassment.
  • Sending unwanted messages that are intrusive or inappropriate via email, text or social media.

Physical sexual harassment

As it sounds, physical sexual harassment is unwanted sexual harassment that is physical in nature, however small the physical act may be. This can include hugging, kissing and/or any kind of touching that makes you feel intimidated or creates a hostile environment.

If there is any sexually explicit or physical behaviour that makes you feel embarrassed, ashamed, confused, humiliated or any other emotion that does not align with feelings of a consensual nature then it is harassment.

Examples of physical sexual harassment:

  • Unwelcome touching of a person’s body or clothing which they do not consent to
  • Non consensual touching by patting a person the shoulders, bumping into them intentionally or rubbing past them
  • Attacking a person physically like pushing or hitting
  • Damaging a person’s private property
  • Repeatedly giving a person a neck massage or grabbing their waste or shoulders.

Quid pro quo sexual harassment

This is the philosophy ‘you scratch my back, I’ll scratch yours’, and is a relationship based on suggestions of reciprocal favours. While a a classic saying, this is also another tactic of sexual harassment. In this scenario, it is typically a superior who uses their position of authority to request acts of a sexual nature from someone in the workplace in exchange for something that the person being subject of the harassment may want or, alternatively, in exchange for an individual avoiding an unpleasant task.

Examples of quid pro quo sexual harassment:

  • Being offered a job in exchange for sexual favours
  • Being offered a promotion or better working conditions in exchange for sexual favours
  • An employer threatening firing an employee if they do not perform sexual favours
  • An applicant denied a job or promotion because of rejecting an employer’s sexual advances.

What To Do If You Are Sexually Harassed

If you are sexually harassed in the workplace, understand that it is not okay and in many cases it is illegal. Some cases of sexual harassment are actually criminal offences and punishable by law and must be taken seriously. All employees deserve a workplace that is not humiliating and offers safety and protection for its workers. It is important to understand that you are not alone and there are actionable steps that you can take depending on what you are comfortable with and the nature of the incident.

For anyone who has been sexually harassed, there are multiple steps and avenues of complaint you can take.

  • If you feel comfortable, let the individual know their behaviour is unwelcome and unprofessional and that it is making you uncomfortable. Without discounting how you may feel, it is possible that the offending worker is genuinely joking and does not know that it is distressing and sexual harassment. To make the environment feel safe and to give you more confidence, you can say this professionally with another worker present.
  • Seek support from co-workers or someone at work that you trust like workers employed for protection like security. If you open up to colleagues that you feel comfortable with, you might find that you are not the only person that this individual is making feel uncomfortable and therefore that is experiencing sexual harassment.
  • Remove yourself from the situation by going to a safe location, asking the harassing person to leave work or to not come near you.
  • Speak to your employer or supervisor, or human resources department. Explain the situation and tell them who the perpetrator is. Explain that the situation is affecting your workplace enjoyment and causing an uncomfortable environment. Ideally it is always good to have documentation of exactly what happened, when it occurred, dates and times for evidence should the matter go further to the police or authorities.
  • In addition to making a complaint to the employer, there are other avenues you can investigate. These include:
    • Contact the Fair Work Commission. The commission helps with disputes under the Fair Work Act. The commission can issue an order to stop further harassment, work through the issue to fix any harm caused or do both.
    • Contact the Australian Human Rights Commission who can handle complaints on unlawful discrimination, harassment, and bullying based on someone’s sex.
    • Contact the Police if the behaviour has involved violence like physical assault or the threat of physical assault. Some forms of sexual harassment may be criminal acts, such as indecent exposure, stalking, sexual assault and obscene or threatening communication.

What are the Protections Against Sexual Harassment?

While the experience might feel isolating, it is important to know that there are mechanisms in place that can protect you against sexual harassment in the workplace. There are the recently minted laws that put a positive obligation on the employers themselves to ensure that the workplace is kept free from this type of unwelcome conduct. Additionally, there are authorities like the police that are available for your protection.

In relation to the positive obligations on the employer’s, there is a new legal requirement in the Sex Discrimination Act which puts a positive duty for employer’s to take ‘reasonable and proportionate measures’ to prevent and ideally eliminate, as far as is reasonably practicable, unlawful sexual misconduct in the workplace. Under this new positive duty, it is unlawful for a workplace to ignore or deny assistance to their staff and to create a safe place.

In this article, we’ve covered the different types of sexual harassment, how to identify it, what you can do if you believe you’ve experienced it, and the protections available to employees in the workplace. To learn more about sexual harassment and your rights and obligations, contact our team at Positive Duty.