Chapter 3: What is sexual harassment? - Effectively preventing and responding to sexual harassment: A Code of Practice for Employers (2008)

 A Code of Practice for Employers

Effectively preventing and responding to sexual harassment: A Code of Practice for Employers

Chapter 3: What is sexual harassment?

Contents

Key points
3.1 What is ‘unwelcome’ conduct?

(a) What about mutual attraction and consensual relationships?

3.2 What is ‘conduct of a sexual nature’?
3.3 What is a ‘reasonable person’?
3.4 Sexually hostile work environments
3.5 Criminal conduct
3.6 Sexual harassment is sex discrimination
3.7 Single incidents
3.8 Same-sex harassment and sexual preference

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Key points

Definition of sexual harassment
  • Sexual harassment is unwelcome sexual conduct which makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances.
  • Sexual harassment can take various forms. It can involve:
    • unwelcome touching, hugging or kissing
    • staring or leering
    • suggestive comments or jokes
    • sexually explicit pictures, screen savers or posters
    • unwanted invitations to go out on dates or requests for sex
    • intrusive questions about an employee’s private life or body
    • unnecessary familiarity, such as deliberately brushing up against someone
    • insults or taunts of a sexual nature
    • sexually explicit emails or SMS messages
    • accessing sexually explicit internet sites
    • behaviour which would also be an offence under the criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.
  • Sexual harassment is not sexual interaction, flirtation, attraction or friendship which is invited, mutual, consensual or reciprocated.
  • Sexual harassment is a legally recognised form of sex discrimination. Sexual harassment and sex discrimination are both unlawful under the Sex Discrimination Act.
The legal test for sexual harassment
  • The legal test for sexual harassment in the federal Sex Discrimination Act has three essential elements:
    • 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. How the conduct in question was perceived and experienced by the recipient is important rather than the intention behind it.
  • Whether the behaviour was offensive, humiliating or intimidating is an objective test. That is, whether a reasonable person would have anticipated that the behaviour would have this effect.
  • The unwelcome behaviour need not be repeated or continuous. A single incident can amount to sexual harassment.
  • A complaint of sexual harassment will not necessarily be dismissed because the person subjected to the behaviour did not directly inform the harasser that it was unwelcome.

3.1 What is ‘unwelcome’ conduct?

According to case law, unwelcome conduct is conduct that was not solicited or invited by the employee, and the employee regarded the conduct as undesirable or offensive.[3]

Whether the behaviour was unwelcome is a subjective question from the perspective of the particular person alleging sexual harassment. It is irrelevant that the behaviour may not have been unwelcome to others or has been an accepted feature of the work environment in the past.[4]


Case example: Unwelcome conduct

A teenage girl who had been unemployed for a year got a job in a cake shop through a government training scheme. After her first week, the respondent (a partner in the business) began to kiss her on the neck, touch her on the buttocks and request sex. Under pressure, she consented to have intercourse with him on a number of occasions.

Although there was evidence that her attitude towards the respondent may have been ambivalent at times, it was held that “by and large...his sexual acts and advances were unwelcome to her.” The Commissioners who heard the case went on to say:

It may seem surprising today that any young woman would endure the conduct of which she complained without taking some steps to bring it to an end. But...I believe that this young woman was unsophisticated, was very keen to remain in employment, and apparently thought that this was the tariff which she had to pay. It was not, and she should be recompensed. She is entitled to damages for the humiliation and injury she suffered at the hands of one who knew that she had been unemployed and that she was eager to have employment.

The Commissioners recognised that she was in “an extremely vulnerable position” and had only endured the situation because she was afraid. In these circumstances, the conduct was still found to be unwelcome and the complainant was awarded $7,000 compensation.

Aldridge v Booth & Ors (1986) EOC 92-177 (at first instance)


(a) What about mutual attraction and consensual relationships?

Sexual interaction or flirtation which is based on mutual attraction or friendship is not sexual harassment because it is not unwelcome.

Different individuals will often perceive and react to behaviour in different ways. This can make sexual harassment a complex area for employers to manage. For example, a person may think that their conduct is welcome or inoffensive, when in fact the recipient finds it distasteful but goes along with it to avoid a confrontation. This can happen where there is a difference in age, racial or cultural background, seniority or personal power between those concerned. Sometimes workplace participants feel they have to join in to avoid being victimised, teased or excluded by their workmates. Relationships can sour or change, messages can be misread and the line between what is welcome and unwelcome can be crossed.


Workplace example: Consensual relationships

Sexual behaviour between employees arising from a mutual sexual or romantic relationship is not sexual harassment. However, managing this situation can become particularly difficult for employers where the relationship later breaks down and a complaint of sexual harassment is made.

In Wong v Su [2001] FMCA 108 the applicant’s claim of unlawful sexual harassment against her employer was unsuccessful. Federal Magistrate Driver found that the sexual harassment allegations were untrue, motivated by malice as a result of the breakdown of the personal and financial relationship between the applicant and respondent.

While a person cannot change their mind about a consensual relationship and then call it sexual harassment, employers still need to deal with complaints arising out of consensual relationships with care. Sexual harassment may occur if, following the relationship breakdown, one party behaves in an inappropriate and unwanted sexual manner towards their former partner. In this case, the situation should be dealt with as any other sexual harassment complaint.[5]

Employers also need to take care to ensure that sexual behaviour between employees, even if reciprocated, does not create an unpleasant and sexualised workplace for other employees.

 

What may be acceptable socially or in private life could well be inappropriate in a work context. Employers should be careful to ensure that professional standards are maintained in the workplace and that a culture of inappropriate behaviour does not develop.

Consent or participation which is obtained by fear, intimidation, threats or force will not rule out a complaint of sexual harassment.

A complaint of sexual harassment should not be rejected just because the complainant did not tell the harasser that their behaviour was unwelcome. The case law takes into account the reasons why someone may feel unable to confront a harasser directly.

Case law indicates that factors that might be relevant include the youth and inexperience of the complainant, fear of reprisals and the nature of the power relationship between the parties.[6]

3.2 What is ‘conduct of a sexual nature’?

The unwelcome behaviour must have a sexual element, overtone or implication. Section 28A(2) of the Sex Discrimination Act says that conduct of a sexual nature ‘...includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing’.

The sexual element of sexual harassment is rarely contentious: in most complaints received by the Commission the alleged harassment is clearly of a sexual nature.

Courts have also interpreted ‘conduct of a sexual nature’ broadly. Conduct that may not, in isolation, appear to be sexual in nature, may become so because of the surrounding circumstances. For example, in Shiels v James and Lipman Pty Ltd[7] the Federal Magistrates Court found that flicking rubber bands at a co-worker’s legs was conduct of a sexual nature because it was part of a pattern of sexual behaviour.


Case example: Unwelcome conduct of a sexual nature

A woman worked for the respondent company as an administrative assistant and later as a logistics controller. She learned that a co-worker had told others that he was in love with her, and later was approached by the co-worker, who told her that he wanted to speak to her alone at his house. The woman refused to go to the man’s house. The next day the co-worker attacked her verbally, blaming her for his feelings and criticising her partner, who worked at the same company. The woman became upset and was sent home by her supervisor. She made a complaint of sexual harassment and was told not to return to work until after a conciliation meeting dealing with the harassment was held. After that meeting the woman was told that her position was redundant.

The woman’s co-worker argued that his behaviour may have been unwanted but was not conduct of a sexual nature.

Federal Magistrate Raphael found that that declarations of love for a woman, suggesting that she spend time with him at his home and commenting on her relationship with her partner was conduct of a sexual nature.

Aleksovski v Australia Asia Aerospace Pty Ltd [2002] FMCA 81


 

Case example: Unwelcome conduct of a sexual nature

In 1994 a woman employed as a packer in a Queensland meat processing factory was awarded $22,000 for sex and race discrimination and sexual harassment. Part of her complaint concerned the generally aggressive treatment by her supervisor, who had also occasionally used obscene language or gestures, sworn at her and told her ‘I’ll bring you to your knees’. In his decision, the President of the Commission took an expansive approach to what can amount to ‘conduct of a sexual nature’. He found that the supervisor’s behaviour towards the complainant (which she described as “pushing her”) over a sustained period reflected a sex-based hostility that was oppressive. He stated that he had ‘no hesitation in characterising such behaviour as sexual harassment’ as it was ‘a serious abuse of power’.

Djokic v Sinclair (1994) EOC 92-643


Sexual harassment needs to be distinguished from general harassment or bullying that is not sexual in nature. However, other forms of harassment based on a person's race, sexuality or disability, for example, would typically be unlawful under other anti-discrimination laws.

Harassment that is based on a person’s sex may still be unlawful as a form of sex discrimination, even if there is no sexual element.

3.3 What is a ‘reasonable person’?

The definition of sexual harassment in the Sex Discrimination Act also requires that a ‘reasonable person’ must have anticipated that the person who was harassed would be offended, humiliated or intimidated.

The reasonableness part of the legal test for sexual harassment requires consideration of the following question: would a hypothetical ‘reasonable person’ feel that the complainant’s reaction to the behaviour was understandable in the circumstances?


Case example: Reasonableness

A woman employed by the respondent company claimed that during her employment she was subjected to sexual harassment in the form of inappropriate language and comments from fellow workers; texta writing on her body; pulling of her bra straps and touching of her buttocks. The respondent acknowledged that there was some ‘horseplay’ in the workplace, but argued that the woman was a willing participant in the activities and that she also used crude language and engaged in similar behaviour.

Federal Magistrate Raphael found that a reasonable person in the woman’s position would have been offended, humiliated or intimidated by the actions and remarks despite the fact that the woman had participated in some of them. For example, with regard to the woman’s use of crude language he stated:

I am not sure that a reasonable person would not anticipate that the applicant would be offended, humiliated or intimidated by bad language solely because the applicant herself also used it from time to time. "Giving as good as you get" is often the only way in which a person feels he or she can resist unpleasant language and would not to my mind indicate to a reasonable person the type of acceptance of the language which would relieve a respondent of liability...

Horman v Distribution Group Limited [2001] FMCA 52

 

What is reasonable will depend on the circumstances of a particular situation. Although the Sex Discrimination Act does not specify the sort of circumstances that may be relevant, factors such as the age of the complainant, their race or ethnicity, any disability they may have, the context in which the harassment occurred and the nature of the relationship between the parties could all be taken into account.


Case example: Reasonableness

A woman was employed by a financial services company as a telemarketer. She complained of sexual harassment by the company manager in three incidents where he came up behind her while she was on the telephone and massaged her shoulders; put an arm around her when she was upset at work; and massaged her a second time while making sexual remarks and otherwise touching her in an unwanted manner.

The Queensland Anti-Discrimination Tribunal found that all of these incidents constituted sexual harassment. In finding that putting an arm around a co-worker could be sexual harassment, tribunal member Tahmindjis stated:

Whether an action is compassionate or reprehensible will depend on the overall context in every case. The context here is that the action was not one between friends of long standing: it was an action by a middle-aged male employer to a young female employee who had only worked in the office for two weeks. It occurred not long after another incident when distress due to a phone call had been used as an excuse to massage the complainant. The action was more than just a touch, such as placing a comforting hand on the distressed person's arm or shoulder: it was more in the form of a cuddle. In my opinion, in this instance in the overall context, a reasonable person should have anticipated that there was the possibility that [the woman] would have found this action offensive, humiliating or intimidating.

Smith v Hehir and Financial Advisors Aust Pty Ltd [2001] QADT 11


3.4 Sexually hostile work environments

In some circumstances, a working environment or workplace culture that is sexually charged or hostile may also amount to unlawful sexual harassment and/or sex discrimination. A sexually hostile workplace is one in which one sex is made to feel uncomfortable or excluded by the workplace environment, by, for example, persistent comments in a male-dominated workplace that women do not belong or by display of sexual material. This approach to sexual harassment first emerged in Bennett v Everitt where it was held that ‘[a]ll employees have a right to employment without sexuality or attempts at the introduction of sexuality, either direct or indirect’.[8]

One of the clearest examples of a hostile environment case is a 1994 decision of the Equal Opportunity Tribunal of Western Australia - Horne v Press Clough Joint Venture[9] (see case example below). Although the two women in this case were never touched, propositioned or harassed by a particular individual, they nevertheless suffered severe, long-term distress and humiliation because of their working environment. The Tribunal stated that:


[i]t is now well established that one of the conditions of employment is quiet enjoyment of it. That concept includes not only freedom from physical intrusion or from being harassed, physically molested or approached in an unwelcome manner, but extends to not having to work in an unsought sexually permeated work environment.[10]


Case example: Sexually hostile environment

Two women were employed as trades assistants for a company constructing an offshore platform. They were the only women working on a site of over 600 men. Their duties involved cleaning offices and rooms in which soft core pornographic posters of semi-naked women were displayed. Although they would have preferred the posters not to be there, they felt they had to tolerate such things in a male-dominated working environment.

On one occasion they were cleaning an office where there was a prominently displayed poster of a naked woman with her genitals exposed. This went too far and they complained. From this time on the women were vilified and abused because they had objected. The posters displayed in their workplace became more explicit, degrading and hard core. They were even confronted by a room in which the walls and ceilings were entirely covered with a montage of pornography, clearly placed there for their benefit.

Although the women were frightened by the inherently threatening nature of the pornography and the victimisation they were subjected to, they received no support or assistance from management or their union. Rather, they were advised that their attitude made them unpopular on the site and were warned not to be troublemakers.

Their situation became increasingly unbearable. They were aware that the male toilets contained grossly offensive graffiti about them. One of them was also terrorised at the site Christmas party and had to lock herself into a storeroom for her own safety.

As a result of this treatment, both women left their jobs and sought counselling. In subsequent legal proceedings, both the employer and the union were held liable and were required to pay a total $92,000 damages.

Horne v Press Clough Joint Venture (1994) EOC 92-556; (1994) EOC 92-591


The case law on hostile working environments shows the need to deal with entrenched group cultures and practices which may hinder women’s equal participation in and enjoyment of their working life.

More recent cases do not refer explicitly to a ‘hostile working environment’, but make it clear that sexualised or demeaning cultures are unacceptable in the modern workplace.[11] Some of the factors which may indicate a potentially hostile environment include the display of obscene or pornographic materials, general sexual banter, crude conversation or innuendo and offensive jokes.[12] Hostile environments can be a particular problem for women working in non-traditional jobs or in male-dominated workplaces, where they are employed on isolated work sites or with live-in arrangements.

A person has the right to complain about the effects of a sexually hostile working environment even if the conduct in question was not specifically targeted at them. In G v R and Department of Health, Housing and Community Services the Hearing Commissioner stated that:

...the presence in a workplace of sexually offensive material which is not directed to any particular employee may still constitute sexual harassment where a hostile or demeaning atmosphere becomes a feature of the workplace environment. [13]

The courts have also accepted that the mere presence of sexually explicit material can be sufficient to constitute sexual harassment. In Lee v Smith & Ors, Connolly FM observed, in relation to pornographic calendars and screensavers in the workplace, ‘The pornography clearly involved an ongoing act of sexual harassment of workers to whom the material was unwelcome.’[14]


Workplace example: Sexual banter

In some workplaces, sexual gossip, jokes and teasing are part of daily working life. Often employees who work in such environments take on this behaviour in order to participate in the workplace culture without thinking about the consequences to others.

Since they do not directly intend to offend or humiliate, employees who tell sexual jokes, circulate offensive material or use inappropriate nicknames for co-workers may be surprised to find out that some of their behaviour could constitute sexual harassment. Employers also need to be aware that they could be vicariously liable for any sexual harassment case arising from such behaviour.

A particular danger arises when comments move from the generalised to the particular, and individuals are targeted for comments, teasing or abuse. However, even generalised comments can offend co-workers, who have a right to work in an environment that is not permeated with sexual banter.

Employers should discourage any workplace behaviour that is sexist or potentially offensive to others. An atmosphere of respect in which employees are careful of each others’ sensitivities will be least likely to foster sexual harassment complaints.


3.5 Criminal conduct

Although the Sex Discrimination Act makes sexual harassment a civil not criminal offence, some types of harassment may also be offences under the criminal law.[15]

These include:

  • physical molestation or assault

  • indecent exposure

  • sexual assault

  • stalking

  • obscene communications such as telephone calls and letters.

In a criminal case the victim appears as a witness for the Crown and the offender can be prosecuted. If the prosecution is successful, the outcome may be a fine or a jail sentence. In civil proceedings, cases are brought by victims themselves. If they win the case they may be awarded damages. The two types of proceedings are not mutually exclusive. However, criminal allegations can be more difficult to establish because they must be proved ‘beyond reasonable doubt’. Civil offences on the other hand need only be proved ‘on the balance of probabilities’.[16]

If an employer suspects that a criminal incident has occurred, the individual should be advised to report the matter to the police as soon as possible and be provided with any necessary support and assistance.

If the Commission receives a sexual harassment complaint which involves allegations of criminal conduct, the complainant is informed of their right to report the matter to the police and an appropriate referral is provided. The Commission may nevertheless deal with a case that involves criminal allegations, particularly if the matter has not been pursued by law enforcement agencies or if the complainant is unwilling to report the matter to the police.[17]


Case example: Complaint involving criminal conduct

A woman alleged that while attending a work conference she was sexually assaulted by a co-worker. The company she worked for was a small family business and the alleged assault was committed by the son of its directors. The woman reported the incident to the alleged assailant’s mother, who was also the office administrator and a director of the company. A few months later the woman’s employment was terminated. She reported the matter to the police but it was not pursued as a criminal case. However, her sexual harassment complaint under the Sex Discrimination Act was upheld and she was awarded $16,000 damages.

Leslie v Graham [2002] FCA 32


3.6 Sexual harassment is sex discrimination

In Australia, sexual harassment has been recognised by the courts to be a form of sex discrimination against women.[18] This is because, although men can be harassed, sexual harassment is generally experienced by women on account of their sex.[19] This means that in many cases an act of sexual harassment against a woman will also be an act of sex discrimination.

In Aldridge v Booth, Justice Spender held that:

...when a woman is subjected to sexual harassment...she is subjected to that conduct because she is a woman, and a male employee would not be so harassed: the discrimination is on the basis of sex. The woman employee would not have been subjected to the advance, request or conduct but for the fact that she was a woman.[20]

Recent case law has supported the view that sexual harassment is a form of sex discrimination against women.[21]

3.7 Single incidents

Sexual harassment does not have to be repeated or continuous to be against the law. The legal definition is drafted in the singular (i.e. ‘an unwelcome sexual advance’ and ‘an unwelcome request for sexual favours’) which indicates that a one-off incident can amount to sexual harassment. This view is supported by the case law.[22] In Hall & Ors v A. & A. Sheiban Pty Ltd & Ors Justice Lockhart of the Federal Court of Australia said the definition of sexual harassment “clearly is capable of including a single action and provides no warrant for necessarily importing a continuous or repeated course of conduct”.[23]


3.8 Same-sex harassment and sexual preference

Sexual harassment is prohibited regardless of the sex of the parties, so a person can make a complaint if they are harassed by someone of the same sex. For example, a recent sexual harassment case involved a male apprentice boiler-maker who was subjected to comments about his sex life by male co-workers.[24]

Sexual preference is also irrelevant to a complaint of sexual harassment. If lesbians or gay men are subjected to unwelcome conduct which is sexual in nature they can make a sexual harassment complaint. For example, if a group of workers makes offensive sexual jokes or comments about a colleague who is perceived to be homosexual, it is likely to be unlawful sexual harassment. It is also not relevant that the harasser had no sexual interest in the complainant. In Font v Paspaley Pearls,[25] allegations of sexual harassment were made by a young saleswoman against the male retail manager. The fact that the manager was homosexual and had no sexual designs on the woman was irrelevant to the outcome.


References

[3]Aldridge v Booth & Ors (1988) 80 ALR 1 at 5.
[4] In Hall & Ors v A. A. Sheiban Pty Ltd & Ors (1989) 85 ALR 503 at 526 Justice Lockhart stated that:
“In principle, advances by an employer, particularly if there is a series of them, all of which may have been tolerated by an employee out of sympathy or out of lack of choice, and each of which or all of which may have been tolerated by the majority of women, may nevertheless contravene s. 28 [at the time the section of the Sex Discrimination Act prohibiting sexual harassment] if they otherwise "vex and annoy" so as to amount to sexual harassment.”
[5] See Section 7 for guidelines on dealing with sexual harassment complaints.
[6] Such as the youth and vulnerability of the complainant in Aldridge v Booth (1986) EOC 92-177.
[7] [2000] FMCA 2.
[8] (1988) EOC 92-244 at 77,280.
[9] (1994) EOC 92-556; (1994) EOC 92-591.
[10]Horne v Press Clough Joint Venture (1994) EOC 92-591 at 77,175.
[11] See, for example, Coughran v Public Employment Office/Attorney General’s Department [2003] NSWIRComm 181, a case where a man was dismissed for his behaviour towards junior female staff. The NSW Industrial Relations Commission said: “...this is a case about culture as much as about an individual...The culture...was one that seemed to have a preoccupation with sex – ribald jokes, sexual innuendo, the sex lives of officers, inappropriate behaviour with sexual connotations and, of course, sexual harassment and discrimination.” [65 and 66] per Boland J.
[12] As the Human Rights and Equal Opportunity Commission stated in Freestone v Kozma (1989) EOC 92-249 at 77,377: “[t]he permeation of the work environment can be imposed or created by many means other than physical acts, including sexual suggestion or embarrassment by unwanted public displays of sexuality...”
[13] [1993] HREOCA 20.
[14] [2007] FMCA 59 at [198].
[15] This is confirmed by the case law. In Hall & Ors v A. A. Sheiban Pty Ltd & Ors (1989) ALR 503 at 572. Justice French said: ‘[the concept of sexual harassment does not exclude criminal behaviour. Indeed, it may be the case that such conduct often occurs in connection with it’.
[16] That it is more probable than not that the alleged behaviour took place.
[17] See Appendix A for a discussion of the Commission’s complaints process.
[18] Early cases establishing this link include: O'Callaghan v Loder (1984) EOC 92-023, Aldridge v Booth (1988) 80 ALR 1 and Hall & Ors v A. & A. Sheiban Pty Ltd & Ors (1989) 85 ALR 503.
[19] See Human Rights and Equal Opportunity Commission A Bad Business: Review of sexual harassment in employment complaints 2002 HREOC Sydney 2003, p17 and Human Rights and Equal Opportunity Commission 20 Years On: The Challenges Continue...Sexual Harassment in the Australian Workplace HREOC Sydney 2004, p30.
[20] (1988) 80 ALR 1 at 16-17.
[21] See for example Elliot v Nanda & Commonwealth of Australia (2001) 111 FCR 240; Horman v Distribution Group [2001] FMCA 52; Wattle v Kirkland & Kirkland [2001] FMCA 66; Johanson v Blackledge Meats [2001] FMCA 6 and Wattle v Kirkland & Anor (No.2) [2002] FMCA 135. Wilcox J did not support this interpretation in Gilroy v Angelov (2001) ALR 57 but his approach has not been followed.
[22]Johanson v Blackledge Meats [2001] FMC 6; Smith v Hehir and Financial Advisors Aust Pty Ltd [2001] QADT 11 at 28: “Even though this was the first alleged incident of touching, this does not mean that it cannot amount to sexual harassment as the incidents do not have to be repeated and the law in Australia does not allow a harasser a first attempt to test the complainant's reaction”.
[23] (1989) 85 ALR 503 at 514-515. In the same case, Justice French also held that sexual harassment need not involve repetition. He stated at 568 that “... circumstances, including the nature and relationship of the parties may stamp conduct as unwelcome the first and only time it occurs”.
[24]Lulham v Shanahan, Watkins Steel and Ors [2003] QADT 11. The apprentice successfully argued that he had been sexually harassed and was awarded $26,000 compensation.
[25] [2002] FMCA 142.