Building upon the work of the Australian Human Rights Commission, Safe Work Australia has released national guidance material for businesses on preventing workplace sexual harassment. This guidance is a must read for all business owners and PCBUs (Persons Conducting a Business Undertaking) under Australian workplace health and safety laws.
Sexual harassment is a workplace hazard, as it creates physical and psychological risks to the health and safety of workers. It is also unlawful under the Sex Discrimination Act 1984 (Cth) (the “Act”) and is prohibited by state and territory anti-discrimination laws. Some instances of workplace sexual harassment may also be criminal offences, such as stalking, obscene or threatening communication, sexual assault, and indecent exposure.
What is workplace sexual harassment?
The legal definition of sexual harassment under the Act has three essential elements. The behaviour must be:
- unwelcomed;
- of a sexual nature;
- such that a reasonable person would anticipate in the circumstances that the person who was harassed would be offended, humiliated and/or intimidated.
Whether the behaviour is unwelcome is a subjective question from the perspective of the person alleging the sexual harassment. It is not relevant that the same behaviour may have been welcomed or tolerated by others or has been an accepted practice in the workplace previously.
Courts have interpreted conduct of a sexual nature broadly, and it is important to note that harassment that is based on a person’s sex may still be unlawful as a form of sex discrimination, even if there is no ‘sexual element’.
Sexual harassment behaviour in the workplace
Sexual harassment can be overt, covert, or subtle and includes:
- unwelcome touching, hugging, cornering, or kissing
- inappropriate staring or leering
- sexually suggestive comments or jokes
- sexually explicit pictures, posters, or gifts
- persistent unwanted invitations to go out on dates
- intrusive questions or comments about a person’s private life or body
- unnecessary familiarity, such as deliberately brushing up against a person
- insults or taunts based on sex
- sexually explicit or indecent emails, phone calls, text messages or online interactions
- threatening to share intimate images or film without consent, and
- actual or attempted rape or sexual assault.
Sexual harassment can also be a behaviour that affects someone who is exposed to, or witnesses, it. For example, a person may overhear an inappropriate and sexually explicit conversation or be exposed to sexually explicit posters in the workplace.
Overt forms of sexual harassment may be easier to identify, however, it is important that employers are aware that the subtle, ‘less serious’ forms of sexual harassment, like crude or sexist remarks, can be just as harmful as overt forms of sexual harassment, and create hostile workplaces that and can cause physical and psychological harm to workplace participants and increase the risk of ‘more serious’ forms of sexual harassment occurring.
Effects of sexual harassment in the workplace
If not addressed promptly and properly, sexual harassment in the workplace can lead to:
- stress and stress-related illnesses, such as cardiovascular disease, musculoskeletal disorders, immune deficiency, and gastrointestinal disorders
- physical injuries as a result of an assault
- feelings of isolation
- negative impacts on a person’s career
- suicidal thoughts
- depression, anxiety, and post-traumatic stress disorder.
The nature of the impact of sexual harassment can vary depending on the person experiencing the harassment, the nature of the harassment, and whether the individuals are ‘re-victimised’ through any subsequent actions by the employer.
Businesses that have not done enough to address workplace sexual harassment (or have exacerbated the impact of the harassment through flawed policies and procedures) risk being held liable for damage suffered by workers as a result of sexual harassment in the workplace and may face reputational damage that impacts on the business’ success and its ability to attract and retain quality staff.
What is my responsibility under WHS legislation?
PCBUs have a duty to eliminate risks to the health and safety of workers and other persons so far as it is practicable. Where it is not reasonably practicable to eliminate risks, risks are to be minimised. As such, PCBUs must do all that they can to reasonably manage the risks of sexual harassment in the workplace.
Read about FWC highlighting employers’ obligations in investigating workplace sexual harassment.
What are some identifiable risks of sexual harassment in the workplace?
Sexual harassment is a systemic risk, with environmental, industrial, and individual risk factors present in all workplaces. Some workplaces will have a higher risk profile for sexual harassment than others. Safe Work Australia has identified that the following factors increase the likelihood and risks of sexual harassment:
-
power imbalances
– workplaces where one gender holds most of the management and decision-making positions
-
a workplace culture that tolerates sexual harassment
– where less serious forms of harassment are accepted and complaints regarding such behaviour are not taken seriously. This can result in escalation to more serious forms of harassment, aggression, and violence;
-
isolation of workers;
-
low workplace diversity
– (i.e., workplaces dominated by one gender, age group, race, or culture).
What employers should do with sexual harassment in the workplace?
We recommend all PCBUs, and business owners review the Guidance issued by Safe Work Australia and consider their own policies and procedures in relation to sexual harassment in the workplace. It is important to note that the definition of workplace sexual harassment can extend to harassment experienced by your workers from customers, clients, and contractors, so may be an issue even if you have a relatively small and close-knit team. If your organisation has any of the identified risk factors for sexual harassment, it will be particularly important to make sure you have addressed these risks in your organisation.
Implementing workplace policy
As PCBU, it is your responsibility to set the standards for behaviour for your organisation, and to ensure that acceptable behaviour standards are reflected across all levels of your organisation, including managers and supervisors. A workplace policy specifically on sexual harassment, and training on the policy, can help set clear expectations about behaviours at the workplace and during work-related activities and provide valuable information for workers, supervisors, and managers, including what to do if:
- they witness or experience workplace harassment; or
- they receive a complaint from a worker that they have experienced or witnessed workplace harassment.
Dealing with sexual harassment complaints
It is also vital that supervisors and managers who are likely to be dealing with or receiving complaints of sexual harassment know how to respond if they receive a report or complaint, so they know:
- how to address concerns early, and prevent larger issues from arising
- how to manage confidentiality issues
- how to know when a situation requires immediate escalation to the PCBU or board
- how to respond to a person making a complaint in a suitable way, to ensure that the impact on the worker is not worsened and they are not ‘re-victimized’ while they are making the complaint.
How can TLB Law & Co workplace lawyers help?
We have compiled a downloadable Sexual Harassment in the Workplace Resource Guide from the Australian Human Rights Commission and Safe Work Australia.
If you have concerns about your workplace culture, need help implementing a harassment policy, or would like some assistance in managing training for your employees, the workplace lawyers at TLB Law & Co are here to help.
If you would like to discuss any concerns you might have or simply talk to us about how we can help, book a 15-minute complimentary initial chat now.