Everyone has a right to feel safe in the workplace but sometimes sexual harassment does occur. Sexual harassment is unwelcome sexual advances causing offence, humiliation or intimidation to the person targeted, and it can affect anyone. The 2022 report Time for Respect found that 71% of Australians have experienced sexual harassment at some point in their lives, and one-third of Australians report experiencing sexual harassment in the workplace. Sexual harassment doesn’t just happen in workplaces – it can occur in many other settings, including public spaces, social venues and online.
In Australia, The Sex Discrimination Act 1984 protects employers, employees, prospective employees, workers and prospective workers from sexual harassment. It is a fundamental right that a person should expect their employer to provide a safe, respectful and healthy workplace. Employers must take all reasonable steps to prevent sexual harassment in the workplace. This includes having a clear sexual harassment policy and providing training or information about sexual harassment. In this article we will guide you through what sexual harassment is, examples of sexual harassment in the workplace, the laws around sexual harassment, understanding your rights and what to do if you are sexually harassed at work.
What Is Sexual Harassment?
Sexual harassment means unwelcome behaviour of a sexual nature. It is any conduct that is unwanted or unwelcome, and which has a purpose or effect of being offensive, degrading, humiliating or intimidating.
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.
People’s experiences of sexual harassment can be affected by their race, ethnicity, religious belief, class, disability, age, migration status and/or whether they are Indigenous. When determining whether behaviour is sexual harassment, the intention of the person involved doesn’t matter.
Sexual harassment is also covered by Work Health and Safety (WHS) laws as it is a workplace hazard that is known to cause psychological and physical harm. WHS laws require a person conducting a business or undertaking (PCBU), such as your employer, to take care of the health and safety of workers and other people like visitors and customers at your workplace.
Examples Of Sexual Harassment
- Unwelcome touching or kissing.
- Staring or leering.
- Suggestive jokes or comments.
- Repeated invitations to go out on dates.
- Requests for sex.
- Insults based on your sex.
- Intrusive questions about someone’s private life or body.
- Sharing sexually explicit emails, SMS messages or images.
Sexual Harassment In Relation To The Workplace
Sexual harassment is a recognised workplace hazard that can lead to both psychological and physical harm. It is illegal under the Commonwealth Sex Discrimination Act 1984 and is also banned by state and territory anti-discrimination laws. Importantly, it does not need to happen in a workplace or ‘at work’ for it to be unlawful. This means that sexual harassment can be unlawful even if it occurs outside a physical workplace, or outside of normal working hours. It can also be unlawful if it occurs while a worker is not ‘at work’ or performing their duties at the time at which the conduct occurs (for example, on a meal break or a coffee break).
Examples of sexual harassment occurring in connection with work may include, but are not limited to:
- When a worker is working remotely, including from their home.
- In a vehicle used for work-related travel, such as to a conference, meeting, or to meet clients.
- At a location where a worker is doing work at a different site, like a client’s home or workplace.
- At social events related to the workplace or team.
- At after-parties following such events, regardless of where they take place.
- In accommodations (including hotel rooms) provided by an employer or a business entity.
Who Is A Worker?
A worker is generally defined as anyone who performs work for an organisation, business or employer. To be classified as a worker can entail both paid and unpaid work. Some examples of workers include:
- A full time/part time employee
- A trainee or apprentice
- An outworker (someone who works at home or in a place that wouldn’t be normally thought of as a business)
- An intern
- A volunteer
- A work experience student
- A contractor or sub-contractor
- An employee of a contractor or sub-contractor
- An employee of a labour-hire company
Impact Of Sexual Harassment In The Workplace
There have been many studies that show the impact of sexual harassment in the workplace on psychological and professional health. A study from the University of Pittsburgh revealed women who experienced sexual harassment had an almost three times higher risk of developing depressive symptoms, sleep disorders, high blood pressure and lowered self-esteem. In addition to psychological costs, workplace sexual harassment imposes a range of costs that impact individuals, including lost productivity and other costs such as healthcare, complaints and investigations. A study from Deloitte estimates the productivity loss from sexual harassment in the Australian workplace at $2.62 billion. Of the women surveyed for this report, 57% of women cited decreased motivation to work and an inability to concentrate on their work due to the presence of sexual innuendos. In another study published in Gender and Society, around 80% of women who have been sexually harassed leave their professions within two years.
Sexual harassment in the workplace is often an issue that extends from the individual to anyone witnessing the behaviour. Everyone is affected by sexual harassment since it creates an atmosphere that makes it difficult for employees to perform. When a workplace is contaminated with prejudice and harassment, employees suffer from absenteeism, low morale, gossip, antagonism, tension, and anxiety as a result. Businesses and the entire market are affected by sexual harassment.
Protection From Sexual Harassment In The Workplace
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 Human Rights Commission (HRC) refers to this conduct as ‘relevant unlawful conduct’. The positive duty was a key recommendation of the HRC Respect@Work Report.
All businesses and organisations in Australia, regardless of their size, which have obligations under the Sex Discrimination Act must meet 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.
With the positive duty under the Sex Discrimination Act, employers have a responsibility to eliminate, as far as possible, the following unlawful behaviour from occurring:
- discrimination on the ground of sex in a work context,
- sexual harassment in connection with work,
- sex-based harassment in connection with work,
- conduct creating a workplace environment that is hostile on the ground of sex, and
- related acts of victimisation.
Actions Employers Can Take To Help Prevent Sexual Harassment
Sexual harassment in the workplace is an ongoing risk to safety and business, and employers have a legal responsibility to take meaningful action to prevent it. Apart from the possible legal consequences, the effect of sexual harassment in the workplace have far reaching impact on everything from company finances, to employee morale and reputation. Workplaces can take steps to prevent sexual harassment by:
Creating a safe physical and online working environment
Safer workplaces lead to increased employee satisfaction and retention. Employees who feel safe and respected are more likely to remain engaged and productive.
Providing information, instruction, training and support about the importance of preventing and addressing sexual harassment in the workplace
Businesses should implement clear procedures to prevent and respond to sexual harassment, including a workplace policy that outlines how the organisation will address and prevent sexual harassment. This policy should specify the acceptable standards of behaviour expected from all workers
Addressing unwanted or offensive behaviour early
Identifying and addressing workplace sexual harassment early reduces health and safety, legal and reputation risks. The potential costs of litigation, compensation and damage to an organisation’s reputation outweigh the costs of prevention and intervention.
Encouraging reporting of sexual harassment and having effective complaints procedures.
Of the one in three workers who experienced sexual harassment at work over the past five years, the majority chose not to report it. As organisations implement prevention measures, it is likely more people will feel safe to disclose the risks and experiences of sexual harassment. An organisation with a speak-up culture is a safer workplace. Employers should establish an accessible and user-friendly process for reporting sexual harassment, which allows for both informal and formal reporting, as well as anonymous and confidential options. The process should include information on available support services.
What To Do If You Are Sexually Harassed In The Workplace
If you are sexually harassed in the workplace, it is important to remember this behaviour is not okay, nor is it legal in most circumstances. Some forms of sexual harassment could constitute criminal offences and should be reported to the police. Your employer is obligated to protect and respond appropriately to employee complaints per the positive duty. In addition to taking a complaint directly to your employer, there are several other avenues available to escalate the complaint. These include:
Contacting Fair Work Commission
The Commission can help with disputes related to sexual harassment at work under the Fair Work Act. If someone feels they’ve been sexually harassed at work, they (or a group like a union) can ask the Commission to:
- Issue an order to stop further harassment.
- Work through the issue to fix any harm caused.
- Or do both.
Lodging a complaint with another government body, like the Australian Human Rights Commission
The Australian Human Rights Commission can handle complaints of unlawful discrimination. This includes complaints of discrimination, harassment, and bullying based on someone’s sex.
Support services
Many services in Australia provide support to people experiencing sexual harassment in the workplace. For immediate emotional support, the following services may help:
- Lifeline has a 24/7 counselling service providing emotional support in times of crisis. Phone 13 11 14
- Beyond Blue has a 24/7 service providing emotional support in times need. Phone 1300 224 636
- Mental Health Line can connect you with a mental health professional. Phone: 1800 011 511
- Headspace is a national youth mental health foundation that helps young people between 12-25 who are going through a tough time. Phone (02) 9114 4100
What To Do If You Hear About Sexual Harassment At Work
If you hear or witness sexual harassment at work there are a few steps you can take to play a role as an active bystander – a person who takes action after witnessing or hearing an incident of sexually harassing behaviour.
- If you feel safe doing so, ask the person to stop their behaviour.
- Offer support to the person who is being harassed.
- Report the issue to a manager, supervisor, human resources, or follow your workplace’s reporting process as soon as you can.
Being an active bystander can help end the silence around workplace sexual harassment and support those affected in reporting the harassment and recovering from their experience
In this article, we explored what constitutes sexual harassment in the workplace and outlined the new obligations employers face under the new Respect At Work Act to protect their workers. To ensure your business is fully compliant and proactive in creating a safe work environment, reach out to Positive Duty today. Our expert consultants can help you navigate the new legislation, reduce risks, and protect your employees and reputation.
