The #MeToo movement has brought sexual harassment in the workplace into the spotlight. It is no longer acceptable for workplaces to ignore, or fail to adequately address concerns or complaints regarding sexual harassment.
In Victoria, the Equal Opportunity Act 2010 (Vic) defines sexual harassment as unwelcome sexual behaviour (either physical, verbal and/or written), which could be expected to make a person feel offended, humiliated or intimidated. Section 28A of the Sex Discrimination Act 1984 (Cth), defines sexual harassment as conduct where a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed or engages in other unwelcome conduct of a sexual nature (including making a statement to, or in the presence of a person either orally or in writing). The conduct occurs in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
The circumstances that are taken into account when determining whether there has been sexual harassment pursuant to the Sex Discrimination Act 1984 (Cth) includes the following1:
i) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
ii) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
iii) any disability of the person harassed;
iv) any other relevant circumstance.
It is important to understand that even if the person did not intend for the conduct to be sexual harassment towards another person, it does not mean that it does not fall within the ambit of sexual harassment. Furthermore, sexual harassment can be conduct that is a one-off, a series or pattern, and a person does not have to say no for it to constitute sexual harassment.
Sexual harassment is prevalent in the workplace in Australia. In 2012, the Australian Human Rights Commission conducted a national survey which found that one in four women and one in six men had been sexually harassed in the years 2007-2012. For sexual harassment to be considered “in the workplace”, it occurs in either of the following settings:
- At work;
- At work-related events or where people are carrying out work-related functions; or
- Between people sharing the same workplace 2.
Australians, generally, have a reputation for being humorous. However, in the workplace, a higher standard applies to how employees behave and conduct themselves and attempted humour of a sexual nature is likely to constitute harassment. Despite the widespread media interest, as well as political responses to the #MeToo movement, the prevalence of sexual harassment claims within the workplace continues to steadily rise. While this in part can be attributed to employees feeling more empowered and comfortable raising their concerns or complaints about conduct of colleagues, there is still a gap between the education and changing behaviour patterns.
A national inquiry into sexual harassment in Australian workplaces was announced in June 2018 by the Australian Sex Discrimination Commissioner, Kate Jenkins. The purpose of the inquiry is to facilitate the conversation around sexual harassment in the workplace and identify the prevalence of sexual harassment within the Australian workplace.
The existence of workplace policies and clearly articulated codes of conduct assists employers establishing the standard and expectation of employees. It also provides employees with the information on what is deemed to be sexual harassment and the process by which they can bring any concerns or complaints to management or human resources. The induction process that employers undertake with employees can also assist in making clear the standards and obligations that employees are expected to meet, under workplace laws and policies of the company.
Ensuring that employees are aware of the employers’ expectations and high standards of behaviour required of them assists in preventing sexual harassment in the workplace and may protect an employer from being liable in the event of a harassment claim. It is also recommended that employers remind employees of their policies and code of conduct in the lead up to any work-related functions. This includes prior to attendance at seminars and conferences, internally, domestic or international functions where the line between work and social is sometimes blurred.
The consequences of not addressing, or failing to adequately address complaints of sexual harassment in the workplace can extend beyond the individuals involved. There have been a number of decisions handed down in the Fair Work Commission and Federal Courts relating to sexual harassment in the workplace and the consequences that result. In a case decided in 2014, Richardson v Oracle Corporation Australia Pty Ltd and Tucker  FCAFC 82, the Court raised the bar in regards to compensation awarded to an individual for general damages and economic loss flowing from sexual harassment by a colleague in the workplace. The Court awarded the applicant damages of $130,000 for sexual harassment by a former colleague, comprising $100,000 in general damages and $30,000 for economic loss.
In the Fair Work Commission decision of Colin Ramon Reguero-Puente v City of Rockingham  FWC 3148, the applicant brought an unfair dismissal claim against the respondent. The applicant’s employment was terminated for misconduct relating to a number of allegations of sexual harassment which were investigated and substantiated by an external investigator. The applicant contended that the female colleagues who were the subject of his inappropriate conduct should have told him to stop. The Fair Work Commission held that “young women should not have to tell their older superiors that they do not want to be sent salacious texts during or after working hours, nor have comments of a sexual nature made about them, or be directed toward them in their workplace.”
It is acknowledged that employers have a responsibility to ensure a safe work environment for all employees. Updating workplace policies, and providing ongoing training for employees will enable a clear message to be portrayed to employees about the standards and expectations of the workplace.
Paul and Julia have extensive experience in this area. If you require assistance with your workplace policies, or with harassment (and bullying) training, please contact then on firstname.lastname@example.org or (03) 9642 0435.
1See ss 28A(1A) of the Sex Discrimination Act 1984 (Cth)
Disclaimer: This article contains information of a general nature and should not be relied upon or taken to be legal advice. You should speak with a lawyer about your situation before applying any of this information.