Sexual Harassment in the Workplace

Since the high-profile sexual harassment case of Kristy Fraser-Kirk against ex-David Jones CEO Mark McInnes, sexual harassment has been on everyone’s radar. This is a serious though often hidden issue, and it’s important that people are aware of what constitutes sexual harassment, and understand their rights and obligations.

In 2008, the Australian Human Rights Commission found that 22 per cent of women and five per cent of men aged 18 to 64 had experienced sexual harassment in the workplace in their lifetime, with four per cent of people experiencing it in the last five years. However, the large majority of harassment cases go unreported – only 16 per cent of those who have been sexually harassed in the last five years made a formal complaint or report, compared to 32 per cent in 2003.

Why are people so reluctant to report sexual harassment? Forty per cent of cases did not think it was serious enough, 15 per cent were fearful of negative consequences, 21 per cent had little faith in the complaints process, and 29 per cent chose to deal with the problem themselves. However, with cases like Fraser-Kirk’s raising awareness about this issue, people may be more likely to speak out and take action.

Workplace relations solicitor Amelia Peters believes that awareness and workplace culture around sexual harassment are generally improving, especially in the last few years – and that awareness is sure to increase even further in coming years. 

What constitutes sexual harassment?

There is a general lack of understanding about what sexual harassment is, and many who have experienced it don’t even realise it.

‘The legal definition of sexual harassment is actually quite specific – under the various pieces of state and federal anti-discrimination legislation there needs to be some kind of unwelcome conduct of a sexual nature in circumstances in which a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated,’ says solicitor Peters.

This behaviour can include:

• staring or leering
• unwelcome touching, hugging or kissing
• suggestive comments or jokes
• sending sexually explicit emails or text messages
• repeated unwanted requests to go out on dates
• intrusive questions about a person’s private life
• requests for sex
• displaying posters, magazines or screen savers of a sexual nature
• unnecessary familiarity, such as deliberately brushing up against someone
• insults or taunts of a sexual nature
• accessing sexually explicit internet sites
• inappropriate advances on social networking sites
• behaviour which would also be an offence under the criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications

Sexual harassment does not have to be repeated or continuous to be against the law – it can be a one-off incident. It can be experienced by both men and women, but is much more commonly perpetrated against women, with young women particularly vulnerable to sexual harassment from their older, male managers or co-workers.

Sexual harassment does not need to be intentional to be considered harassment. ‘In my experience, most people claim that they are not aware that what they’ve done constitutes sexual harassment. However, in most jurisdictions, the intention of the harasser is irrelevant,’ says Peters.

It should be stressed that sexual harassment is not sexual interaction, flirtation, attraction or friendship which is invited, mutual, consensual or reciprocated.

Sexual harassment policy in the workplace

All employers should have established policies and procedures around sexual harassment in place, and they can be held responsible for sexual harassment if they haven’t taken reasonable steps to prevent it. If sexual harassment occurs, appropriate actions need to be taken. It is against the law for anyone to victimise you for making a complaint.

The responsibilities of employers when it comes to sexual harassment include:

• having a workplace policy on sexual harassment
• establishing a process for dealing with complaints
• training employees to identify and deal with sexual harassment 

The key to sexual harassment prevention is communication: employees need to understand that sexual harassment is unacceptable and they need to understand the policies around it. A written policy is not enough – education and enforcement are vital. Employers also need to lead by example and foster a culture based on appropriate behaviour that is modeled by management.
 

What you can do if you’re a victim of sexual harassment

If you experience sexual harassment, you can try to resolve the matter internally by following your employer’s complaints procedure or take it to the Australian Human Rights Commission (or the relevant state or territory anti-discrimination agency). You are not required to attempt to resolve your complaint within the workplace before approaching the Commission or relevant agency. You may also report criminal acts such as assault directly to the police.

‘Most sexual harassment complaints are resolved at the workplace level without reaching the Courts or tribunals. Most of the complaints that are made to the various anti-discrimination tribunals are resolved in the early stages via conciliation. This is an informal process whereby the parties sit around a table and discuss a mutually acceptable resolution of the complaint,’ says Peters.

Depending on what the complaint is about, conciliation can result in:

• an apology
• reinstatement to a job
• flexible work arrangement
• the provision of goods or services in a non-discriminatory way
• changes in an organisation’s policies or practices
• payment of financial compensation 

If conciliation does not work or the complaint is terminated, you can choose to take your complaint further to the Federal Court of Australia or Federal Magistrates Court for a decision.

Peters offers this general advice when it comes to sexual harassment: ‘I would suggest that employees in general read and familiarise themselves with their employers’ policies on sexual harassment and other inappropriate workplace conduct on a regular basis. Most employers have sexual harassment policies in place and employees can use these as a guide to behaviour their employers consider appropriate and inappropriate in the workplace.’