Sexual harassment and obligations of employers – Part 1

This is the first instalment of a two-part series which canvasses workplace sexual harassment, who is most at risk and what Australian employers should do to address sexual harassment in the workplace and limit their liability.

Introduction

In 2020, the Australian Human Rights Commission (Commission) released the Respect@Work: Sexual Harassment National Inquiry Report (2020) (Report) in response to concerns regarding Australia’s prevention of, and response to sexual harassment, particularly in the workplace. The Report provided comprehensive and informed recommendations about what ‘best practice’ with respect to sexual harassment looks like in the workplace (see our recent article).

In response to the Report, the Australian Government recently published A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (2021) (Roadmap), which outlines its agreeance (in full, in part or in principle) to all 55 recommendations in the Report. As a result of the Report and Roadmap, employers can expect the current legal landscape to be reformed in order to strengthen the national framework addressing workplace sexual harassment.

The legal framework prohibiting workplace sexual harassment in Australia is complex. Employers and employees are governed by obligations and protected by rights set out in the Sex Discrimination Act 1984 (Cth) (SD Act), the Anti-Discrimination Act 1991 (Qld) (AD Act), the Fair Work Act 2009 (Cth) (FW Act), State-based industrial relations and workplace health and safety laws, and at common law.

Amongst the anticipated package of reforms is an upcoming amendment, the Sex Discrimination Amendment (Prohibiting All Sexual Harassment) Bill 2021 (Bill), which seeks to expand the prohibition of sexual harassment in the SD Act. The amendment will extend its operation to positions that have historically been overlooked, such as judges and members of parliament, or those who have not previously been contemplated, such as those in the gig economy.

Despite the existing framework, a survey by the Commission has revealed that one in three people experience sexual harassment at work.[1] Unfortunately, there are certain groups of workers, being predominantly women, young people and those with disabilities, as well as workplaces, such as construction, retail, hospitality and police, that are particularly susceptible.

Sexual harassment is obviously traumatic for the victim and bystanders, but it is also detrimental to the overall productivity of the workplace. Absenteeism, loss of productivity, negative workplace culture and reputational damage are all flow-on consequences of workplace sexual harassment. It has been estimated that the cost of workplace sexual harassment to the Australian economy was $3.8 billion in 2018.[2] It is therefore in everyone’s best interests to work towards a workplace free of sexual harassment.

What is workplace sexual harassment?

Both the SD Act and AD Act define sexual harassment. The SD Act prohibits sexual harassment in the workplace in Australia, whereas the AD Act prohibits sexual harassment more generally in Queensland.

SD Act

According to the SD Act, a person sexually harasses another person if they make an unwelcome sexual advance or request for sexual favours, or if they engage in other unwelcome conduct of a sexual nature, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Conduct of a sexual nature includes making a statement to a person, or in the presence of a person, whether the statement is made orally or in writing. This may be:

• physical (touching, kissing, cornering);
• verbal (sexually suggestive comments or jokes); or,
• visual (sexually explicit images, sexual gestures).

In determining whether a person has been sexually harassed, the following will be considered:

• the sex, age, sexual orientation, gender identity, relationship status, religious belief, race, or ethnic orientation of the person harassed;
• the relationship between the parties involved;
• any disability of the person harassed; and
• any other relevant circumstance.

It is unlawful for a workplace participant – such as an employer, employee, commission agent, contract worker, or partner – to sexually harass another workplace participant in the workplace. A workplace broadly refers to a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant. This has been found to include the office, work functions including Christmas parties and educational seminars, and company vehicles.[3]

Conduct that has been found to constitute to workplace sexual harassment includes:

• touching a colleague;
• asking inappropriate questions about or commenting on a colleague’s sexual experiences/preferences;
• making sexual inuendoes (whether in the presence of anyone else or not);[4]
• requesting or offering massages or sexual favours;[5]
• sending sexually suggestive images and jokes to colleagues’ email addresses and/or phones; and/or
• overhearing a conversation at work which a reasonable person may regard as offensive or harassing.

 AD Act

In contrast, the AD prohibits sexual harassment of another person, in all circumstances. This may include:

• unsolicited acts of physical intimacy, demands or requests for sexual favours;
• remarks with sexual connotations relating to the other person; and/or
• engaging in unwelcome conduct of a sexual nature.

This conduct is considered sexual harassment if it has the intention of offending, humiliating or intimidating the other person, or in circumstances where a reasonable person would have anticipated that possibility.

Employers have obligations and employees have rights under both Commonwealth and State/Territory discrimination legislation. Queensland workplaces are bound by both the SD Act and the AD Act, both of which prohibit sexual harassment. Therefore, all Queensland employers must be aware of and meet their obligations under both these pieces of legislation to protect their employees from sexual harassment.

Who is most at risk of workplace sexual harassment?

Evidence suggests that particular groups of people and industries are more affected than others with respect to workplace sexual harassment. Workers who are more likely to experience workplace sexual harassment include:

• women;
• young people (aged 30 years old or younger);
• people who identify as being lesbian, gay, bisexual, transgender and intersex;
• Aboriginal and Torres Strait Islander workers;
• people with a disability; and
• people from culturally and linguistically diverse backgrounds.

Research also shows that while harassers have diverse behaviours and motivators, the overwhelming majority are male. Industries and workplaces which are considered high risk for sexual harassment include those which are male dominated, involve high levels of contact with customers, clients and patients, and have hierarchical workplace structures. The following industries have been identified as high-risk in relation to workplace sexual harassment:

• construction and mining;
• financial services;
• retail and hospitality;
• healthcare and social assistance;
• police and defence; and
• medical and legal.

While some individuals and industries are considered high-risk, all employers have an obligation to respond to workplace sexual harassment.

This was the first part of a two-part series. Stay tuned for the next instalment where we will outline the obligations and liabilities of employers in addressing workplace sexual harassment. We will also provide some guidance as to what best practice for workplaces looks like.

Gadens can assist employers by investigating allegations of sexual harassment, as well as any other employment related issues. To see how Gadens may be able to assist, please contact our team of Employment Advisory specialists. 

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Authored by:

Jonathon Hadley, Partner

[1] Australian Human Rights Commission, ‘Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces’ (2018), 26.

[2] Deloitte Access Economics, ‘The economic costs of sexual harassment in the workplace’ (Final Report, March 2019), 5.

[3] Ashby v Slipper (2014) 312 ALR 551.

[4] Richardson v Oracle Corporation Australia Pty Ltd & Anor (2014) 312 ALR 285.

[5] Golding v Sippel and Laundry Chute Pty Ltd [2021] QIRC 074.