Sexual harassment is any unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated. Statistics show that one in three workers still experience sexual harassment like unwanted touching, suggestive comments or sharing explicit images. Everyone has the right to feel safe at their place of employment and businesses have a legal obligation to protect employees from sexual harassment. Raising an issue of sexual harassment can be difficult but there are a range of options available to address the unlawful behaviour.
What is Sexual Harassment?
The law defines sexual harassment as sexual behaviour that is unwelcome and results in the recipient feeling uncomfortable, unsafe, offended or humiliated. It happens when one person makes unwanted advances in a sexual way towards another person. This may be in the form of asking for sexual favours or making a statement of a sexual nature to the person, or in the presence of the person, either in writing or verbally. Sexual harassment can be overt like groping or subtle like inappropriate staring. It may be a single incident or repeated behaviour and it can occur in person, online or over the phone.
Examples of Sexual Harassment
Sexual harassment can occur in the workplace or a public setting and is usually one of four forms – verbal, non-verbal, physical and quid pro quo. Every type of sexual harassment is unlawful and unacceptable.
Verbal Sexual Harassment
When people talk out loud in a sexual way that is offensive, it is known as verbal sexual harassment. It can include sexual comments about a person’s body, offensive jokes or innuendos that make the recipient feel embarrassed and uncomfortable. Some examples of verbal sexual harassment include:
- When someone has rejected your advances, asking them on a date repeatedly.
- Questioning a coworker about their private life when they don’t want to discuss it.
- Putting the coworker down by using derogatory or sexually explicit language.
- Making comments on a colleagues body and how they look in a suggestive and disrespectful way.
Non-verbal Sexual Harassment
This is one of the more subtle types of sexual harassment and can include behaviours like invading a person’s personal space, constantly smiling at them, or sending texts that are too intimate for the coworker relationship. Although non-verbal sexual harassment is less obvious than verbal, it is still unacceptable and should not be tolerated. Examples of non-verbal sexual harassment include:
- Sitting and staring at a colleague consistently, causing them to feel uncomfortable.
- Making gestures like licking your lips when they walk past.
- Sending unwanted gifts when the recipient has expressed discomfort or rejection.
- Consistently texting or messaging a person on social media when it is unwanted is an intrusive and inappropriate behaviour.
Physical Sexual Harassment
This is sexual harassment of a physical nature and can be anything from an unwanted hug to any touch that feels intimidating or hostile. Physical sexual harassment is usually overt actions that can make you feel embarrassed, confused or humiliated. Any physical action, no matter how small, is considered harassment if it is non-consensual. Examples of physical sexual harassment include:
- Touching a person’s body or clothing when they did not issue consent.
- Physically attacking a person like pushing or hitting.
- Forcing sexual contact by kissing, fondling or intercourse.
- Damaging a co-worker’s private property.
Quid Pro Quo Sexual Harassment
This type of sexual harassment stems from the philosophy of reciprocity. Usually in the quid pro quo scenario it is a superior using a position of authority for sexual favours. Examples of quid pro quo sexual harassment include:
- Being told you can have a job if you agree to a sexual relationship.
- Getting a promotion on the proviso that you will exchange sexual favours.
- Being threatened with dismissal if you don’t agree to sexual favours.
Dealing with Sexual Harassment at Work
Everyone has the right to feel safe at work and protecting workers from sexual harassment is a legal obligation of employers. How you choose to respond will depend on the severity and nature of the sexual abuse. Follow this guideline for dealing with sexual harassment at work.
- Keep a record: Make sure you note down all conversations, texts and interactions for evidence should you wish to report the behaviour. When keeping a record, write down the date, time, location and what was suggested. Note down if there were any witnesses to the event and who they were.
- Tell them to stop: If you feel safe, tell the perpetrator to stop harassing you. Express to them that their behaviour is making you feel uncomfortable and intimidated and you want it to stop. Do not speak to them directly if you feel unsafe though. Should you decide to have a conversation, make sure you have someone with you for support.
- Seek support from other workers who may be bystanders to the abuse: If other workers have witnessed the sexual harassment, ask them for support if you decide to report the issue. If you have a friend at work you can talk to, reach out and explain what has been happening.
- Remove yourself from the situation: If possible, leave the room or area that the sexual harassment is occuring in or ask the perpetrator to leave. Prioritise your safety by walking away, hanging up the phone, or blocking the abuser on social media.
- Get legal advice: Before taking action against the perpetrator, seek legal advice to find out what your options are. Free legal advice can be obtained from Victoria Legal Aid.
- Report the sexual harassment internally: When reporting internally, you have a few options depending on your workplace. You can speak to your employer or manager and inform them of the sexual harassment that has taken place. Take the record of conversations and messages that you have gathered and start affirmative action against the person harassing you. If you have a human resources department or representative, you can also report the issue to them with your evidence. Reporting the offensive behaviour is often a good way to make the sexual harassment stop. Your employer should have workplace policies in place for responding to sexual harassment complaints.
- Consider external options: If you feel unsafe, there has been no resolution internally, or the conduct is severe, you will need to consider external options. There are a range of resources and support services available for someone who has experienced sexual harassment in the workplace. These are:
- Union: If you have a union at work, contact your union member for support and advice.
- Fair Work Commission: Contact the Fair Work Commission (FWC) for advice and support. As Australia’s national workplace relations tribunal, they are responsible for resolving disputes like those related to sexual harassment under the Fair Work Act. The FWC attempts to resolve cases through mediation and discussion.
- Fair Work Ombudsman: The Fair Work Ombudsman is responsible for investigating a workplace for non-compliance with laws prohibiting workplace sexual harassment. They can also take action when there is non-compliance with a Fair Work Commission stop sexual harassment order.
- Australian Human Rights Commission: The Australian Human Rights Commission receives complaints about sexual harassment in the workplace. It addresses the issues in relation to the positive duty obligations of employers to provide a safe working environment. The commission offers a free complaint service for people who have been sexually harassed, bullied or discriminated against.
- Victorian Equal Opportunity and Human Rights Commission: The Victorian Equal Oportunity and Human Rights Commision handles complaints about sexual harassment at work. It can offer resources and information about your rights and responsibilities, promote the positive duty, and handle complaints by trying to facilitate mutual resolution.
- Police: If the sexual harassment constitutes criminal conduct or you are in danger, contact the Victoria Police.
- Contact support services for mental health: Sexual harassment at work can trigger anxiety and stress so it may be worth seeking support services for your mental health. These services are all available to support mental and physiological health:
- Healthcare professional: Speak to your doctor about the sexual harassment you have been dealing with. Explain what effects it is having on you at work and home. Your GP may be able to provide some treatment or refer you to a counsellor.
- Online support services: There are a number of helpful support services you can access online or over the phone. These include:
- Lifeline: Phone 13 11 14. This 24 hour telephone support service provides counselling and emotional support in times of crisis.
- Beyond Blue: Phone 1300 224 636. This support service provides online and phone counselling with qualified professionals.
- Apply for workers compensation: If the sexual harassment impacted your mental or physiological health, you can apply for workers compensation. In some cases for those with an injury or illness because of sexual harassment, workers compensation may be available.
- Make an insurance claim: For those with income protection in their insurance policy, you can make a claim for loss of wages due to temporary illness or injury. This income protection may also be included in your superannuation policy.
Protection from Sexual Harassment in the Workplace
All organisations and businesses have a legal obligation to protect employees from sexual harassment in the workplace. The positive duty on employers under the Sex Discrimination Act 1984 means that employers must take ‘reasonable and proportionate measures’ to prevent relevant unlawful conduct from occurring in the workplace or in connection to work. This legislation became mandatory in December, 2023 and requires employers to actively prevent workplace sexual harassment and sex discrimination. Employers no longer have to simply react to complaints about sexual harassment, but are legally obliged to work to stop problems before they happen. The law brings added compliance and complexity, forcing employers to create safe and respectful workplaces.
The positive duty helps people who are experiencing sexual harassment at work by shifting the burden of responsibility from the individual to the organisation, focusing on prevention, and ensuring accountability. With legal obligations like the positive duty, sexual harassment is less likely to occur as there are systems in place for prevention.
To understand how to deal with sexual harassment at work and the obligations of an employer, contact the team at Positive Duty.