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A Bad Business
(Review of sexual harassment in employment complaints 2002)

Part A: Background

1. Introduction

Sexual harassment has been unlawful across Australia for almost twenty years with 2004 marking the twentieth anniversary of the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act). [2] Over that period, community awareness of the existence of sexual harassment, particularly in the area of employment, has grown considerably.

The Sex Discrimination Act makes it unlawful for a person to sexually harass another person in employment, education and other areas of public life. [3]

The proportion of sexual harassment in employment complaints received by the Human Rights and Equal Opportunity Commission (HREOC) under the Sex Discrimination Act has been decreasing over the past eight financial years, while the proportions of complaints on the grounds of sex and pregnancy discrimination have been increasing. [4] However, for the period July 1999 to June 2002 the actual number of complaints received by HREOC alleging sexual harassment increased, suggesting that sexual harassment is an on-going problem despite 20 years of legislation. [5] In addition, complaints of sexual harassment are still significant, at 27 per cent of the complaints to HREOC under the Sex Discrimination Act. [6] As such, it is timely to review these complaints.

1.1 Purpose of the review

The purpose of this review is to investigate the nature of sexual harassment in employment that is being reported to HREOC by analysing complaints made to HREOC. The review has analysed the data according to a number of characteristics such as type of harassment, nature of employment and employer consequences. The data also provide evidence of the consequences for employers in failing to effectively implement preventative strategies in their workplaces.

The analysis is limited to complaints that have been made to HREOC. Sexual harassment that has been reported to State and Territory organisations under State and Territory legislation has not been included. As such, the review represents only a particular segment of nationally reported sexual harassment.

It is important to note that the outcomes of the conciliated complaints are agreements between the parties to the complaint and that HREOC does not determine whether the alleged harassment actually occurred. Any compensation paid by employers or individuals may not be taken as an admission that harassment occurred and conciliation agreements usually include a statement to this effect. This should be borne in mind when considering the data presented in this paper.

This paper forms part of a broader package of work on sexual harassment being undertaken by HREOC. HREOC is also:

1.2 The research project: design, methodology and analysis

The research project involved the collection of quantitative and qualitative information on sexual harassment complaints through detailed examination of the complaint files for each relevant complaint. This information was then classified to allow comparison between complaints and the identification of general trends in the nature of reported sexual harassment.

Overall 370 complaints made under the Sex Discrimination Act were finalised by HREOC in 2002. Of these, 162 complaints were identified as involving allegations of sexual harassment.

One complaint may be made on multiple grounds under the Sex Discrimination Act, and each of these grounds will relate to an area of public life in which the harassment occurred. [7] In this review, the 162 complaints were classified as follows:

Given the prevalence of sexual harassment in employment amongst the complaints, it was decided to focus the review on this issue. In addition, the smaller number of complaints in other areas would not have been statistically significant in the results. Three of the 155 complaint files on sexual harassment in employment were not available and so have not been included in the review.

This paper, therefore presents the statistics and qualitative data from a review of 152 complaints alleging sexual harassment in the area of employment finalised in 2002 by HREOC.

All 152 complaints were included regardless of the outcome of the complaint or whether a conciliation conference was held. This includes cases which were terminated by HREOC. [8] Only one of these complaints was terminated on the ground that it lacked substance. [9]

1.3 Limitations of the research

While the analysis of complaints has been an effective method for gathering statistical data on the nature and frequency of reported sexual harassment and gaining insight into the complaints process, it has been unable to provide insight into the nature and frequency of the incidence of sexual harassment in the community. In short, this paper provides information about who reports harassment, but does not provide a full picture of who is harassed. It is widely accepted that reported sexual harassment represents only the “tip of the iceberg” in relation to the incidence of sexual harassment in the community. It is not possible to extrapolate the full picture from the complaints data.

The analysis is also limited by the available data on complaints. Complaints varied in their level of complexity and in the degree of investigation required. As a result, complaints files varied in the amount of information that was collected, particularly in relation to demographics of complainants and individual respondents, information about the employer, and the effect of the harassment. In addition, completion of a survey by complainants about their personal characteristics and background is voluntary and as such was not available for all complaints. [10] This means that, at times, the calculated statistics are based on a relatively small number of complaints and should be used with caution.

1.4 About this paper

The paper is divided into four sections.

Part A includes an introduction to the paper and an overview of the project design and limitations.

Part B provides an overview of HREOC’s complaint handling process and the legal definition of sexual harassment under the Sex Discrimination Act.

Part C contains the findings of the research. This includes information on:

Part D considers the implications of the research findings.

Footnotes

2. Each State and Territory also has its own legislation concerning sexual harassment. In some States this legislation has been in place for longer than twenty years, for example, in Victoria it has existed since 1977: Equal Opportunity Act 1977 (repealed and replaced by the Equal Opportunity Act 1995). Such legislation has existed in the Australian Capital Territory since 1991: Anti-Discrimination Act 1991; in the Northern Territory since 1992: Anti Discrimination Act 1992; in Queensland since 1991: Anti Discrimination Act 1991; in South Australia since 1984: South Australian Equal Opportunity Act 1984; in Tasmania since 1994: Sex Discrimination Act 1994 (repealed and replaced by the Anti Discrimination Act 1998); and in Western Australia since 1984: Equal Opportunity Act 1984. In New South Wales, sexual harassment was dealt with as a form of sex discrimination under the Anti-Discrimination Act 1977 until 1997 when explicit provision for sexual harassment was made in the Act.
3. See Section 2 for the legal definition of sexual harassment.
4. Human Rights and Equal Opportunity Commission Annual Report 1995-1996 Commonwealth of Australia Canberra 1996, p90; Human Rights and Equal Opportunity Commission Annual Report 1996-1997 HREOC Sydney 1997, pp42-43; Human Rights and Equal Opportunity Commission Annual Report 1997-1998 HREOC Sydney 1998, pp47-48; Human Rights and Equal Opportunity Commission Annual Report 1998-1999 HREOC Sydney 1999, pp46-47; Human Rights and Equal Opportunity Commission Annual Report 1999-2000 HREOC Sydney 2000, p57; Human Rights and Equal Opportunity Commission Annual Report 2000-2001 HREOC Sydney 2001, p73; Human Rights and Equal Opportunity Commission Annual Report 2001-2002 HREOC Sydney 2002, p73 and Human Rights and Equal Opportunity Commission Annual Report 2002-2003 HREOC Sydney 2003, p77.
5. Complaints on the ground of sexual harassment increased from 142 complaints in 1999-2000 to 167 complaints in 2000-2001 to 195 complaints in 2001-2002. Human Rights and Equal Opportunity Commission Annual Report 1999-2000 HREOC Sydney 2000, p57; Human Rights and Equal Opportunity Commission Annual Report 2000-2001 HREOC Sydney 2001, p73 and Human Rights and Equal Opportunity Commission Annual Report 2001-2002 HREOC Sydney 2002, p73. Complaints decreased in 2002-2003 to 172. Human Rights and Equal Opportunity Commission Annual Report 2002-2003 HREOC Sydney 2003, p77. The next most recent increase in the number of complaints on the ground of sexual harassment was between 1993-1994 and 1994-1995. Human Rights and Equal Opportunity Commission Annual Report 1993-1994 Commonwealth of Australia Canberra 1994, p80 and Human Rights and Equal Opportunity Commission Annual Report 1994-1995 Commonwealth of Australia Canberra 1995, p151. The decrease in the number of complaints on the ground of sexual harassment between 1994-1995 and 1999-2000, and between 2001-2002 and 2002-2003 corresponds to a decrease in the total number of complaints received under the Sex Discrimination Act during these periods.
6. Human Rights and Equal Opportunity Commission Annual Report 2002-2003 HREOC Sydney 2003, p77.
7. See Section 2 on the legal definition of sexual harassment.
8. Complaints that cannot be resolved by conciliation or are considered inappropriate for conciliation are terminated by the President of HREOC. Grounds for termination include that there is no reasonable prospect of settlement, that the behaviour is not unlawful or that the complaint is lacking in substance. See Section 3 for an overview of HREOC’s complaint handling process.
9. In comparison, 14 per cent of all complaints under the Sex Discrimination Act that were finalised in 2001-2002 were terminated on the grounds of being trivial, vexatious, frivolous, misconceived or lacking in substance: Human Rights and Equal Opportunity Commission Annual Report 2001-2002 HREOC Sydney 2002, pp73-74.
10. HREOC invites complainants to provide a range of demographic information including their age and ethnicity for statistical purposes by returning a voluntary survey form to HREOC. For the 2001-2002 financial year, 68 per cent of complainants returned this form.

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Last updated: 12 November 2003