What is sexual harassment?

Sexual harassment is any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated.

Sexual harassment is not interaction, flirtation or friendship which is mutual or consensual.

Sexual harassment is a type of sex discrimination.

The Sex Discrimination Act 1984 (Cth) makes sexual harassment unlawful in some circumstances.

Despite being outlawed for over 25 years, sexual harassment remains a problem in Australia.

Sexual harassment disproportionately affects women with 1 in 5 experiencing sexual harassment in the workplace at some time. However, 1 in 20 men also report experiencing sexual harassment in the workplace.^[1]

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Identifying sexual harassment

Sexual harassment can take many different forms – it can be obvious or indirect, physical or verbal, repeated or one-off and perpetrated by males and females against people of the same or opposite sex.

Sexual harassment may include:

• staring or leering
• unnecessary familiarity, such as deliberately brushing up against you or unwelcome touching
• suggestive comments or jokes
• insults or taunts of a sexual nature
• intrusive questions or statements about your private life
• displaying posters, magazines or screen savers of a sexual nature
• sending sexually explicit emails or text messages
• inappropriate advances on social networking sites
• accessing sexually explicit internet sites
• requests for sex or repeated unwanted requests to go out on dates
• behaviour that may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.

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In what circumstances is sexual harassment unlawful?

The Sex Discrimination Act makes it unlawful for a person to sexually harass another person in a number of areas including employment, education, the provision of goods and services and accommodation.

Of all the complaints received by the Commission under the Sex Discrimination Act in 2009-10, 1 in 5 related to sexual harassment. Our Complaints Register contains complaints conciliated and finalised under the Sex Discrimination Act.

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Sexual harassment in the workplace

Every year, sexual harassment in the workplace is one of the most common types of complaints received by the Commission under the Sex Discrimination Act. In 2009 – 2010, 21% of all complaints to the Australian Human Rights Commission were under the Sex Discrimination Act, and 88% of those complaints related to sex discrimination in the workplace. The wide use of new technologies such as mobile phones, email and social networking websites creates new spaces where sexual harassment may occur.

Sexual harassment at work is against the law. Sexual harassment can be committed by an employer, workmate or other people in a working relationship with the victim.

Sexual harassment can be a barrier to women participating fully in paid work. It can undermine their equal participation in organisations or business, reduce the quality of their working life and impose costs on organisations^[2].

It is important for employers to know how to increase awareness of and prevent sexual harassment. It is also important for employees and co-workers to know how to identify sexual harassment and what avenues are available to them to make a complaint.

Click here for Sexual harassment - information for employers

Click here for Sexual harassment - information for employees

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Sexual harassment in education

Students and teachers are entitled to an education and workplace free from harassment. All schools should have a policy to deal with these issues.

Sexual harassment is any unwanted or uninvited sexual behaviour that is offensive, intimidating or humiliating. It has nothing to do with mutual attraction or friendship.

Under the Sex Discrimination Act it is unlawful for:

• A teacher or a student over the age of 16 to sexually harass a student
• A student over the age of 16 to sexually harass a teacher

Click here for Sexual harassment in education

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Making a complaint

If you feel you have been sexually harassed, you can make a complaint to the Australian Human Rights Commission. Complaints must be made in writing or by email. This can be done by downloading a complaints form or completing the online complaint form.

There is no cost involved in making a complaint. Complaints can be made in any language, in Braille, or verbally on a video or audio tape. The Commission can also help you write out your complaint if you require assistance.

The Complaints section of the Commission’s website has more information about the complaints process. Alternatively, for further information, or to discuss a complaint with a Complaints Information Officer, call 1300 656 419 or email complaintsinfo@humanrights.gov.au.

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Sexual harassment and the Commission

Tackling violence, harassment and bullying and building community understanding and respect for human rights are the two key priorities of the Commission as set out in the Commission Workplan for 2010-2012.

Sexual harassment is also one of the Sex Discrimination Commissioner’s five priority areas as outlined in the Gender Equality Blueprint 2010, which includes recommendations to strengthen protection against sexual harassment.

Amendments to the Sex Discrimination Act

In 2008, the Commission submitted a report to the Senate Legal and Constitutional Affairs Committee on the effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality. In this submission, the Commission made recommendations concerning the sexual harassment provisions of the SDA.

The recommendations relating to sexual harassment included:

• Amending the definition of sexual harassment in relation to the reasonable person standard.
• Extending the coverage of sexual harassment to protect workers from harassment by customers, clients and other persons that they come into contact with in connection with their employment.
• Amending the coverage of sexual harassment to protect all students, regardless of their age.
• Extending sexual harassment protection to protect students from all staff and adult students connected with their education or school attendance, irrespective of whether the harasser is from the same or different educational institutions.
• Amending the SDA to include a general prohibition against sexual harassment in any area of public life.
• Imposing a positive obligation on employers to take all reasonable steps to avoid sexual harassment of or by their employees.

The Senate Legal and Constitutional Affairs Committee’s subsequent Report included 4 recommendations that related spefically to sexual harassment for immediate implementation.

Recommendations 15 and 16 suggested a lower reasonable person standard  that provided that sexual harassment occured if a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated and the circumstances relevant to determining this.

Recommendation 17 urged that protection against sexual harassment of students be improved by removing age limits and requirements that the harasser and victim be from the same educational institution.

Recommendation 18 encouraged sexual harassment in employment to be extended to harassment perpetrated by customers, clients and others who the victim came in contact with.
The Senate Report also made other recommendations including:

• a general prohibition against sex discrimination and sexual harassment in any area of public life (Recommendation 8);
• increased funding be provided to women’s legal services to ensure they had resources to provide advice for sex discrimination and sexual harassment matters (Recommendation 24); and
• that further consideration be given to the provision of positive duties by the public sector and other service providers to eliminate sex discrimination and sexual harassment (Recommendation 40).

The Senate Report is available at http://www.aph.gov.au/senate/committee/legcon_ctte/sex_discrim/report/report.pdf

The Government published its response to the Senate Report in 2010. The Government Response agreed to undertake immediate action to implement the four key recommendations in relation to sexual harassment that were set out in Recommendations 15-18 of the Senate Report. The Government Response stated that the outstanding sexual harassment recommendations would be considered by the Government in the consolidation process of the federal anti-discrimination acts, following the review of the Equal Opportunity for Women in the Workplace Act or in light of the availability of resources.

The Government Response is available at http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_GovernmentResponsetoSenateStanding
CommitteeonLegalandConstitutionalAffairs2008reportintotheeffectivenessoftheSexDiscriminationAct1984 In 2010, the Sex and Age Discrimination Legislation Amendment Bill 2010, which sought to implement selected recommendations in the Senate Report, was introduced in the Australian Parliament. In May 2011 the Sex and Age Discrimination Legislation Amendment Act 2011 was passed expanding the protections against sexual harassment. The amendments:

• redefined sexual harassment to cover what a reasonable person would anticipate the possibility that the person harassed would be offended, humiliated or intimidate by the conduct.
• strengthened protections against sexual harassment in workplaces and schools to protect students from sexual harassment regardless of their age and whether they are harassed by someone from their own educational institution or another educational institution; and
• prohibited sexual harassment conducted through new technologies (e.g. over the internet, or through social media or texting).

These amendments provide important protections and are an encouraging step forward to ensuring gender equality in Australia.

The Amendment Act adopted the majority of the recommendations on sexual harassment made by the Commission in its 2008 submission.

Two recommendations which were not adopted were the general prohibition against sexual harassment in any area of public life, and the positive obligation on employers to take all reasonable steps to avoid sexual harassment in their workplace.

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2012 Sexual Harassment National Telephone Survey

For the full results and report on the 2012 survey, see Working without Fear.

For the 2008 sexual harassment survey results, see Sexual Harassment: Serious Business.

For the 2003 sexual harassment survey results, see Sexual Harassment: A Bad Business.

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Recent media releases and speeches

• Will sexual harassment ever be eliminated?
  Article by Sex Discrimination Commissioner, Elizabeth Broderick, Published in The Sydney Morning Herald on Saturday, 6 November 2010.
• Sexual Harassment
  SBS Insight episode, with Elizabeth Broderick as a guest, Tuesday 14 September 2010
• Pod Rights Episode 18
  Sex Discrimination Commissioner, Elizabeth Broderick speaks to Peter Wilson, National President of the Australian Human Resources Institute, who has labeled sexual harassment 'a corporate cancer' - 27 September 2010.
• Getting Women off the Bench: A Gender Equality Blueprint for 2010
  Speech by Elizabeth Broderick, Sex Discrimination Commissioner and Commissioner responsible for Age Discrimination, National Press Club, Canberra, Wednesday 23 June 2010.

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Publications

• Working without fear: Results of the sexual harassment national telephone survey 2012 (2012)
• Know your rights: Sex discrimination and sexual harassment (2010) is an informative publication about the Sex Discrimination Act, what sex discrimination and sexual harassment are and how to prevent and report them.
• Young people in the workplace (2010) contains a series of resources to help students explore the issues around workplace discrimination including sexual harassment.
• Effectively preventing and responding to sexual harassment: A Code of Practice for Employers (2008)
• Quick Guide to Effectively preventing and responding to sexual harassment (2008)
• Sexual harassment: Serious business - Results of the 2008 Sexual Harassment National Telephone Survey (2008)
• Inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender equality (2008)
• Listening Tour Community Report (2008) documents the findings of a nation-wide ‘Listening Tour’ undertaken by the Commissioner in November 2007 in relation to gender equality.
• 20 Years On: The Challenges Continue: Sexual Harassment in the Australian Workplace (2004) is an analysis of results from the first comprehensive national telephone survey on sexual harassment conducted for the Commission by the Gallup Organization.
  Behind Closed Doors (2004) is a paper looking at the issue of sexual harassment in employment and approaches to resolving associated complaints that are brought before the Australian Human Rights Commission.
• Sexual Harassment in the Workplace: A Code of Practice for Employers (2004) clearly explains what constitutes sexual harassment, how employers can be liable and how they can avoid liability by taking all reasonable steps to prevent this occurring in their workplaces.
• A Bad Business: Review of Sexual harassment in employment complaints (2002)
  Harsh Realities 1 (1999) and Harsh Realities 2 (2002) are an educative set of case studies and real-life experiences of sex discrimination (including sexual harassment) complaints conciliated by the Commission in 1999 and 2002, respectively.
• Sexual Harassment and Educational Institutions: A Guide to the Federal Sex Discrimination Act (1996) aims to assist educational institutions - schools, vocational education and training colleges and universities to understand and fulfill their obligations under federal sexual harassment legislation. It addresses the complex legal and jurisdictional issues that arise for different education sectors under the federal law and provides practical advice on developing polices and handling complaints.

Click here to order these publications.

Other publications

• Sexual Harassment in Australia Project
  Associate Professor Paula McDonald, Associate Professor Sara Charlesworth, Tina Graham, Anthea Worley - www.sexualharassmentinaustralia.org

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^[1] Sexual harassment: Serious business - Results of the AHRC 2008 Sexual Harassment National Telephone Survey.

^[2] Fredman, S. (1997). Women and the law. New York: Oxford University Press; and
McCann, D. (2005). Sexual harassment at work: National and international responses. Geneva, Switzerland: International Labour Office.