Effectively preventing and responding to sexual harassment: A Code of Practice for Employers
Chapter 2: A guide to the Code of Practice
Contents
2.1 What is sexual harassment?
2.2 When is sexual harassment unlawful?
2.3 What are my legal obligations as an employer?
2.4 How do I write a sexual harassment policy?
2.5 How do I implement and monitor a sexual harassment policy?
2.6 How should I deal with complaints?
2.7 Other employer duties
2.8 Are there any specific guidelines for small business?
2.9 Further assistance
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2.1 What is sexual harassment?
Sexual harassment is unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances. Sexual harassment in employment is unlawful under the Sex Discrimination Act.
Sexual harassment in the workplace can take various forms. It can involve unwelcome touching, hugging or kissing; suggestive comments or jokes; unwanted invitations to go out on dates or requests for sex; insults of taunts of a sexual nature or sexually explicit emails or SMS messages.
Both men and women can experience sexual harassment at work. However, it is most commonly experienced by women. An individual can experience sexual harassment from someone of the same sex.
For more information about sexual harassment see Section 3.
2.2 When is sexual harassment unlawful?
Sexual harassment is unlawful in almost every employment situation and relationship. For example, sexual harassment is prohibited at the workplace, during working hours, at work-related activities such as training courses, conferences, field trips, work functions and office Christmas parties. It is also unlawful between almost all workplace participants.
For more information on who is covered by sexual harassment laws see Section 4.
2.3 What are my legal obligations as an employer?
There are good business reasons for preventing sexual harassment in the workplace.
As an employer, you may be held legally responsible for acts of sexual harassment committed by your employees. This is called ‘vicarious liability’. The Sex Discrimination Act makes employers liable for acts of sexual harassment unless they have taken all reasonable steps to prevent it from taking place.
While there is no uniform standard expected of employers in taking all reasonable steps, at a minimum employers would usually be expected to:
- have an appropriate sexual harassment policy which is effectively implemented, monitored and communicated to all workplace participants.
- take appropriate remedial action if sexual harassment does occur.
Policies and procedures preventing harassment assist employers in maintaining positive workplace relationships and can improve employee motivation and performance.
In managing sexual harassment in the workplace, you may also have obligations under other laws, such as privacy, defamation, occupational health and safety and industrial laws.
2.4 How do I write a sexual harassment policy?
A key aspect of prevention is the development and promotion of a written policy which makes it clear that sexual harassment will not be tolerated under any circumstances.
For information on how to write a sexual harassment policy see Section 6.
2.5 How do I implement and monitor a sexual harassment policy?
For information on how to implement and monitor a sexual harassment policy, see Section 6.
2.6 How should I deal with complaints?
If sexual harassment does occur, take appropriate remedial action. An employer should have appropriate procedures for dealing with grievances and complaints once they are made.
For more information on establishing internal procedures for dealing with sexual harassment grievances or complaints see Section 7.
2.7 Other employer duties
In managing sexual harassment in the workplace, you may also have obligations under other laws, such as privacy, defamation, occupational health and safety and industrial laws.
For a brief overview of some of these obligations, see Section 10.
2.8 Are there any specific guidelines for small business?
There is no exemption in the Sex Discrimination Act for small business. Employers in all small businesses, whatever the size, may be vicariously liable for acts of sexual harassment committed by employees in connection with their employment unless all reasonable steps were taken to prevent it occurring.
Small businesses are expected to write and implement a sexual harassment policy, and they need to deal with complaints in an appropriate way. However, courts will take into account the size and resources of a business in deciding what is reasonable to expect them to do to prevent sexual harassment.
For specific assistance for small businesses see Section 8.
2.9 Further assistance
For further assistance on sexual harassment issues, employers can contact the Australian Human Rights Commission or their state or territory anti-discrimination agency. Contact details for these organisations are at Appendix B. Employers may also seek assistance from employer organisations, small business or industry associations.
