Sexual harassment is a serious workplace issue that can affect anyone. It involves unwelcome sexual behaviour that can cause offence, humiliation or intimidation. The 2022 Time for Respect report found that 77% of Australians aged 15 years or older experienced sexual harassment at some point in their lives. One in three workers also reported experiencing sexual harassment in the workplace in the last five years. 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 provides protections against sexual harassment in the workplace. Employers also have obligations to take proactive steps to prevent relevant unlawful conduct. 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 is unwelcome conduct of a sexual nature that, in the circumstances, a reasonable person would anticipate could offend, humiliate or intimidate the person experiencing it. It can include an unwelcome sexual advance, request for sexual favours or other unwelcome conduct of a sexual nature. It can also take many forms and may be overt, covert or subtle and can involve a one-off incident or repeated behaviour. Sexual harassment can happen in person, through phone calls, text messages 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 or whether they are Indigenous. Sexual harassment does not have to be intentional for conduct to be unlawful.
Sexual harassment can also be a workplace health and safety risk because it can cause psychological and physical harm. Work health and safety (WHS) laws require persons conducting a business or undertaking (PCBUs) to manage risks to workers’ health and safety. Specific WHS requirements vary between Australian jurisdictions.
Examples Of Sexual Harassment
- Unwelcome touching or kissing.
- Staring or leering.
- Sexually suggestive comments or jokes.
- Unwanted invitations to go out on dates.
- Requests for sexual favours.
- Insults based on your sex.
- Intrusive questions about a person’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 cause psychological and physical harm. It is unlawful under the Commonwealth Sex Discrimination Act 1984 and may also be prohibited by state and territory anti-discrimination laws. Importantly, sexual harassment does not have to occur in a physical workplace or during normal working hours to be connected to work. It may occur while working remotely, travelling for work, attending a work-related social event or staying in accommodation provided for work purposes. It may also occur during breaks, such as a meal or coffee break, even when a worker is not performing their usual duties.
Examples of sexual harassment occurring in connection with work may include, but are not limited to:
- Working remotely, including from home.
- Travelling in a vehicle used for work-related purposes, such as travelling to a conference, meeting or to meet clients.
- Working at a different site, such as a client’s home or workplace.
- Attending social events related to the workplace or team.
- Attending after-parties following such events, regardless of where they take place.
- Staying in accommodations, including hotel rooms, provided by an employer or business entity.
Who Is A Worker?
The term ‘worker’ can have different meanings under Australian legislation. For workplace sexual harassment purposes, protections can extend beyond traditional employees. Depending on the circumstances and relevant legislation, workers may 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
Sexual harassment can have significant psychological, professional and organisational impacts. The Australian Human Rights Commission’s 2022 Time for Respect survey found that 67% of people who experienced sexual harassment at work reported negative mental or emotional health impacts or stress. This figure was higher among women, at 71%, compared with 59% of men.
The survey also found that workplace sexual harassment affected job satisfaction, self-esteem and confidence, commitment to the organisation, employment and career outcomes and productivity.
The economic impact can also be significant. A Deloitte Access Economics report estimated that workplace sexual harassment resulted in $2.62 billion in lost productivity in Australia. The report also identified additional costs associated with healthcare, complaints, investigations and other impacts. These findings demonstrate that the consequences of sexual harassment can extend beyond the individual to affect employers and the wider economy.
The effects can also extend to people who witness or are otherwise exposed to sexual harassment. Safe Work Australia recognises sexual and gender-based harassment as a psychosocial hazard that can cause psychological and physical harm. Exposure to sexual harassment can also affect workplace morale, trust and psychological safety, potentially contributing to absenteeism, reduced engagement and tension among employees.
Protection From Sexual Harassment In The Workplace
In December 2022, a positive duty was introduced into the Sex Discrimination Act 1984. The duty creates a legal obligation for employers and persons conducting a business or undertaking to take ‘reasonable and proportionate measures’ to eliminate, as far as possible, certain unlawful conduct in the workplace or in connection with 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.
The positive duty applies to employers and persons conducting a business or undertaking that have obligations under the Sex Discrimination Act, regardless of the size or resources of the organisation or business. The positive duty requires a proactive, rather than reactive, approach to preventing relevant unlawful conduct. This may involve addressing the causes of gender inequality and power imbalances, identifying emerging risks and using data to inform prevention measures.
Under the positive duty, employers and other organisations covered by the Sex Discrimination Act have a responsibility to take reasonable and proportionate measures to eliminate, as far as possible, the following unlawful conduct:
- 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
Employers can take a range of practical steps to help satisfy their positive duty and prevent sexual harassment in the workplace. These positive duty guidelines include:
Creating a safe physical and online working environment
A positive workplace culture can help create a safer environment where employees feel respected and supported. Employees who feel safe and respected are more likely to remain engaged and productive.
Providing information, instruction, training and support
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 can help reduce health and safety, legal and reputation risks.
Encouraging reporting and establishing complaints procedures
Employers should establish accessible reporting processes that give workers confidence to raise concerns and disclose experiences of sexual harassment. Where appropriate, these processes should allow for informal and formal reporting, as well as anonymous and confidential options and provide information about available sexual assault support services.
What To Do If You Experience Sexual Harassment In The Workplace
If you experience sexual harassment in the workplace, there are several steps you can take and avenues available to you depending on the circumstances. Some forms of sexual harassment, including sexual assault, could constitute criminal offences and may need to be reported to the police. Your employer has obligations to respond appropriately to complaints. In addition to raising the matter directly to your employer, there are several other avenues available depending on the circumstances. These include:
Contacting Fair Work Commission
The Fair Work Commission can deal with certain disputes involving sexual harassment at work under the Fair Work Act 2009. Depending on the circumstances, a person who has experienced sexual harassment at work may be able to apply to the Commission for:
- An order to stop sexual harassment;
- Help resolving the dispute in another way; or
- Both.
The Fair Work Commission’s process and available outcomes can depend on when the sexual harassment occurred. For example, different rules apply to sexual harassment that happened or started before 6 March 2023.
Lodging a complaint with the Australian Human Rights Commission
The Australian Human Rights Commission can receive complaints about workplace sexual harassment under the Sex Discrimination Act 1984. The Commission can inquire into complaints and, where appropriate, help the parties resolve the matter through conciliation.
You can also contact the Commission’s Respect@Work Information Service for information and referrals about workplace sexual harassment and sex-based discrimination.
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 of need. Phone 1300 224 636
- Headspace is a national youth mental health foundation that helps young people aged 12-25 who are going through a tough time.
What To Do If You Hear About Sexual Harassment At Work
If you hear about or witness sexual harassment at work, you can take steps to act as an active bystander and support the person affected.
- 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.
Understanding and preventing sexual harassment is an important part of creating a safe and respectful workplace. If your organisation needs support understanding its positive duty obligations or developing effective prevention measures, contact Positive Duty for guidance.
