Opinion Pieces - Improper sexual behaviour still rife (2008)

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Improper sexual behaviour still rife

Author: ELIZABETH BRODERICK

Publication: The Canberra Times, Page 13 (Wed 6 Feb 2008)

When I started in my new role as Sex DiscriminationCommissioner at the Human Rights and Equal Opportunity Commission last year, I thought I had a pretty good idea of the issues I would face. But I will be frank in saying that I am genuinely shocked by just how pervasive sexual harassment seems to be. I had thought, ''Who doesn't know these days that this behaviour is wrong and unlawful?'' Well, clearly many don't.

As I tour the country on my ''listening tour'' aimed at hearing what issues are important to creating a fair and equal society for Australian women and men it is clear that sexual harassment is alive and well and occurring far too frequently. There is no question that work- related sexual harassment is unlawful this has been the case under the Sex Discrimination Act for more than 20 years. And yet, as has been documented extensively by HREOC and many others, and I have now heard for myself, sexual harassment continues to be a problem in workplaces.

Particularly affected are young, female employees. One of the recurring themes during my tour focus groups has been the confusion as to where the boundaries lie between acceptable flirting and unlawful sexual harassment. As one young man in the banking sector explained to me, it was impossible to know whether playful, sexualised banter would be taken as unwelcome sexual conduct.

One young woman who had recently entered the workforce told me that she knew it was not OK for friends and family to sexually harass her, but she wasn't sure where things stood when it came to her boss. ''When my uncle does it, I know it's not right. But when my boss does it, I am simply confused,'' she said.

Confusion about what constitutes sexual harassment arises if we don't have good education and training in place. Those testing the boundaries should be aware that, in deciding whether particular conduct is unwelcome, courts apply a ''subjective'' test. This means they look to see how the conduct was perceived by the recipient rather than the intention behind it.

Whether the perpetrator intended to harass or not is irrelevant under the law. The ''I didn't mean it'' defence simply doesn't wash. Everyone should also be clear that a one-off incident can amount to sexual harassment.

So the ''I only discovered the line when I crossed it'' defence doesn't wash, either. As for employers, a level of confusion persists as to whether they can be held vicariously liable for sexual harassment between co- workers when it occurs outside work hours. The answer is yes.

The scope of vicarious liability for off- duty sexual harassment has come a long way in recent years and is wider than many employers appreciate. Indeed, last year the Federal Magistrates Court held the Commonwealth Department of Defence vicariously liable when one of its employees raped a fellow employee at a private residence following a social dinner party. It should be remembered that one of the explicit aims of the Sex Discrimination Act is to ''eliminate, so far as possible ...

sexual harassment in the workplace''. This is not an abstract ideal for governments and lawyers; it is a benchmark against which all employees and employers are held accountable. In the United States, some employers have taken matters to extremes, such as requiring romantically involved co-workers to sign consensual dating agreements (or ''love contracts'') or firing employees who breach ''non-fraternisation policies''.

These extreme measures raise a whole host of other issues about employee rights and freedoms. In protecting employees against sexual harassment, it is important that we as a society do not throw out the proverbial baby with the bathwater by sacrificing other important rights along the way. As working hours continue to rise and people's lives get busier, workers are increasingly finding romantic partners through their work.

Eliminating work-related sexual harassment is not about eliminating romance from the workplace. It is about making the line between acceptable and unacceptable work-related behaviour clear, and then enforcing that line when it's crossed. In the aftermath of the festive season, HREOC will start to receive its regular (and saddening) stream of sexual-harassment complaints relating to alcohol- fuelled Christmas parties.

As we all settle in to another year, I hope employers and employees alike will enter 2008 with a fresh commitment to stop sexual harassment as a nationwide New Year's resolution. Elizabeth Broderick is the federal Sex Discrimination Commissioner.