Sexual harassment in the Workplace

What is sexual harassment?

Sexual harassment is generally defined as any unwanted or unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated.

It includes remarks, conduct or innuendo of a sexual nature.

It can be a person harassing a member of the opposite sex or of the same sex.

Some examples of behaviour which constitutes sexual harassment are:

– making remarks about a person’s appearance or attractiveness.
– asking questions about a person’s relationship status or sexual activity.
– sending emails with sexual content.
– showing a person pornographic pictures. For example, on a mobile phone or computer.
– Unnecessarily touching a person.
– Gender based insults.
– Posting of pin ups in the workplace.
– Dirty jokes (including by email or social media).
– Sexual assault.
– Requests for favours.
– Intrusive questions asked at employment interviews.
– Offers of rewards for sex.
– Sexually explicit conversation.

Laws prohibiting sexual harassment in the workplace exist at both the federal and state level. At the federal level, claims can be made to the Australian Human Rights Commission under the Sex Discrimination Act, and in Western Australia a complaint can be made to the Equal Opportunity Commission under the Equal Opportunity Act.

The tests to be applied in determining whether behaviour amounts to sexual harassment are generally similar under the federal and state legislation. However, there are minor differences.

Federal: Sex Discrimination Act

The Sex Discrimination Act specifies three general elements that need to be satisfied in order for conduct to be considered sexual harassment. They are:

1. The behaviour must be unwelcome

2. It must be of a sexual nature

3. In the particular circumstances, a reasonable person would anticipate that the person who was harassed would be offended, humiliated and/or intimidated.

Whether the behaviour is unwelcome is a subjective test. This means that there is a focus on the recipient of the harassments’ point of view – how the particular conduct was perceived by the recipient themselves, rather than the actual intention of the person directing that conduct towards the recipient.

The third element, whether the behaviour was offensive, humiliating or intimidating, is an objective one. That is, whether a reasonable person would have anticipated that the behaviour is offensive, humiliating or intimidating.

State: Equal Opportunity Act [WA]

The law relating to sexual harassment at work in Western Australia is slightly different. In order for workplace behaviour to be considered sexual harassment under the Equal Opportunity Act the following elements need to be satisfied:

1. First there needs to be an unwelcome sexual advance, or unwelcome request for sexual favours by one person to another, or a person must engage in other unwelcome conduct of a sexual nature.

2. The recipient of the unwelcome conduct must have reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage them in any way in connection with their employment or possible enjoyment of their work; or

3. As a result of the recipient’s rejection of the advance, refusal of the request or taking of objection to the conduct the recipient is disadvantaged in any way in connection with their employment or possible enjoyment of their work.

Complaints about sexual harassment may also be made to the Fair Work Commission under the Fair Work Act’s bullying provisions.

Employers Beware: Recent trends in escalating damages for sexual harassment

In the past few years there has been a significant upward shift in the amount of damages awarded by Australian courts for sexual harassment. Two recent cases illustrate this.

In the Victorian case of Richardson v Oracle Corporation Australia Pty Ltd and Tucker [2014] FCAFC 82 the Federal court awarded Rebecca Richardson, a former consulting manager employed by Oracle Australia, a total of $130,000 in damages for sexual harassment she received from a colleague Randal Tucker. Ms Richardson was subjected to multiple humiliating comments and sexual advances during her employment with Oracle. Mr Tucker’s harassment included comments to the effect that he and Ms Richardson were married in a previous life, and comments such as ‘So, Rebecca, how do you think our marriage was? I bet the sex was hot’. The award of damages reflected the psychological and reputational harm caused to Ms Richardson, the fact that she had to leave her job at Oracle and accept a lower paid position, and the effect the harassment had on her relationship with her partner.

In another Victorian case, Collins v Smith (Human Rights) [2015] VCAT, the Victorian Civil and Administrative Tribunal awarded the complainant in a sexual harassment case over $330,000 in damages. In that case the owner/manager of a post office had subjected a female employee to numerous instances of sexual harassment over a three-month period. His conduct included repeated attempts to kiss and embrace Ms Collins, touching her inappropriately, the sending of incessant text and phone messages containing sexual advances, demands for sexual favours in return for enabling her to work Saturday shifts, and likening her to a Lamborghini that he could not drive (so he would not want it anymore).

Although these cases demonstrate conduct that is at the more serious end of the scale, they should still serve as warnings to all employers to be aware of their obligations to identify and prevent sexual harassment in the workplace. Sexual harassment can have a damaging effect on a workplace. It can impact employees’ performance at work and create a hostile and negative work environment. Therefore, it is in every employers’ interest to take proactive steps to prevent it.

Actions that can be taken by employers to minimise the risk of sexual harassment in the workplace include:

– Having a clear and appropriate sexual harassment policy
– Training employees on how to identify and deal with sexual harassment
– Putting in place internal procedures for dealing with complaints
– Taking appropriate remedial action if and when sexual harassment occurs at work.

If you have any concerns, please feel free to contact one of our sexual harassment lawyers for a confidential discussion.

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