What Is Sexual Harassment?
This is, essentially, unwelcome conduct, remarks or innuendo of a sexual nature. It may involve a person harassing a member of the opposite sex or of the same sex.
The Federal and State legislation are similar and generally, there are three elements to the definition:
- the behaviour must be unwelcome
- it must be of a sexual nature
- it must be 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 test, ie the issue is how the conduct in question was perceived and experienced by the recipient rather than the intention behind it. Whether the behaviour was offensive, humiliating or intimidating is an objective test: whether a reasonable person would have anticipated that the behaviour would have this effect.
The types of behaviour which can constitute sexual harassment include:
- intrusive questions asked at employment interviews;
- physical contact such as kissing, patting, pinching or touching in a sexual way;
- requests for favours;
- attempts at intercourse;
- intercourse under threat of loss of employment;
- sexual assault;
- requiring hugs and or kisses from employees or co-workers;
- asking employees or co-workers questions about their sex lives, underwear etc;
- offers of rewards for sex ;
- lewd comments;
- dirty jokes (including by email);
- foul language;
- suggestions or innuendo;
- statements of an adult nature, either verbal or written and either made to a person or in their presence;
- sexually explicit conversation;
- unwelcome remarks about a person’s sex or private life;
- suggestive comments about a person’s appearance;
- posting of pin-ups in the workplace;
- screen savers with any overtly adult content;
- love letters;
- proposals of marriage;
- offensive or nuisance telephone calls;
- offensive or nuisance emails;
- demands that a person wear suggestive clothing;
- gender based insults or taunting.
A victim of sexual harassment is normally entitled to financial compensation for lost income, and pain and suffering arising from the harassing conduct.
A business has a positive duty to prevent sexual harassment in the workplace. Under section 527E, a business is liable for the actions of its employees and agents, unless it can prove it took reasonable steps to prevent the employee or agent from sexually harassing others in the workplace.