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Sexual Harassment (A Code in Practice) - What is sexual harassment?

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Sexual Harassment
(A Code in Practice)

1. What is sexual harassment?

1.1 General principles

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;
  • insults or taunts based on your sex;
  • 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 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 rather than the intention behind it.

Whether the behaviour was offensive, humiliating
or intimidating
is an objective test: 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. However, there does need to
be some indication from the person’s conduct or the surrounding
circumstances that the behaviour was in fact unwelcome.

1.2 Explanatory notes

1.2.1 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 and will
depend on the response of the particular person alleging sexual harassment.
It is irrelevant that the behaviour may not offend 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)

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.

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. For further
direction, see the discussion at 4.2.1.

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.

Consent or participation which is obtained by fear, intimidation,
threats or force will not preclude 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 However, even if the complainant did not say anything to the harasser
there still needs to be some indication from their reaction or the surrounding
circumstances that the conduct was unwelcome.

1.2.2 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 HREOC 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: 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: 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 HREOC
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 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.8

1.2.3 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?

What is reasonable will depend on the circumstances of
a particular case. 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 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

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

1.2.4 Sexually hostile work environments

In some circumstances, a working environment or workplace
culture that is sexually permeated or hostile may also amount to unlawful
sexual harassment. 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."9

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 Venture10 (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.11

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 demonstrates 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.12 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.13 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.
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.

1.2.5 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; and
  • obscene communications (telephone calls, letters etc).

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 and
be provided with any necessary support and assistance.

If HREOC 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. HREOC 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

1.2.6 Sexual harassment is sex discrimination

In Australia sexual harassment is a legally recognised
form of sex discrimination against women.18 This is because, although men can be harassed, sexual harassment is generally
experienced by women.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

1.2.7 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

1.2.8 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 homosexual colleague 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 case.

Footnotes

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 Chapter 5 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. See discussion at 1.2.5.
9. (1988) EOC 92-244 at 77,280.
10. (1994) EOC 92-556; (1994) EOC
92-591.
11. Horne v Press Clough Joint
Venture
(1994) EOC 92-591 at 77,175.
12. 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.
13. 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..."
14. [1993] HREOCA 20.
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: "[t]he 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 HREOC's complaints processes.
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.


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Last updated:
24 March 2004.