Sexual harassment can have a serious and damaging effect on a workplace. It can affect work performance and create a hostile work environment for those who experience and witness it. Not only do employers have a legal obligation, but it is in your interest to take action to prevent it and train staff annually as per the Act’s requirements.
A person who sexually harasses someone else is primarily responsible for their behaviour. However, in many cases you can also be held vicariously liable for sexual harassment by your employees, agents and contractors, unless you can show that you took steps to prevent the sexual harassment from occurring.
Under the Sex Discrimination Act you must take all reasonable steps to minimise the risk of discrimination and harassment occurring. All reasonable steps is not defined in the Sex Discrimination Act, but is determined on a case-by-case basis depending on the size and resources of your organisation.
PLEASE NOTE: The Sex and Age Discrimination Legislation Amendment Act 2011 amended the Sex Discrimination Act 1984 in May 2011 to expand the protections against sexual harassment. Click here for more information.
You would usually be expected to:
- have an appropriate sexual harassment policy
- train employees yearly on how to identify and deal with sexual harassment
- put in place an internal procedure for dealing with complaints
- take appropriate remedial action if and when sexual harassment occurs.
- You may also have other obligations under privacy, defamation, occupational health and safety and industrial laws.
For more information on effectively preventing and responding to sexual harassment in the workplace, see the comprehensive and practical Ending workplace sexual harassment : A resource for small, medium and large employers. Click here to order these or other publications for your workplace.
For further information for employers on sexual harassment, see the Australian Human Rights resource Good Practice, Good Business: Eliminating discrimination and harassment in the workplace, specifically:
- What is discrimination and harassment?
- Employer responsibilities
- Writing an effective sexual harassment policy
- Fact sheet: sex discrimination and sexual harassment
Click here for Sexual Harassment – Information for Employees for employee specific information.
To find out about the Commission’s Know Where the Line Is awareness raising strategy, click here.
What is Sexual harassment?
Sexual harassment is any unwelcome sexual behaviour which in circumstances where a reasonable person would anticipate you might be offended, humiliated or intimidated. It’s against the law.
This could include unwelcome:
- sexual advances: such as unwelcome touching, staring, unwanted requests to go on dates;
- requests for sexual favours, including suggestive jokes; and/or
- sexual behaviour aimed at you or in your presence: such as any unwelcome gesture, action or comment of a sexual nature. This can be spoken or in writing, for example through SMS texting, Facebook, or by displaying unwanted sexual posters or screensavers and also includes intrusive questions about your private life. It would also include physical gestures.
For behaviour to be sexual harassment, it must be unwelcome. That means that you don’t want it to happen. So behaviour of a sexual nature which you agree or consent to, such as flirting, is not sexual harassment.
For some more information on sexual harassment and whistle blowing services visit the the Confidential Reporting website: www.whistleblowingservice.com.au
You can also check out this video below from to learn more about sexual harassment and where to draw the line: https://www.youtube.com/watch?v=AaC1DvMOqYY
Is sexual harassment against the law?
Yes. Sexual harassment is against the law. You do not have to put up with it and it’s okay to complain. Remember, no-one deserves or asks to be sexually harassed. Everyone has the right to work in an environment free from sexual harassment. It’s also against the law for an employer to take action against you (for example firing you or demoting you) because you make a complaint about sexual harassment.
Sexual harassment can also be a crime including sexual or indecent assault. Indecent assault is when someone touches your body in a sexual way, even through clothes, without your consent. For more information on sexual assault, please see our Sexual Assault fact sheet.
Where can sexual harassment happen?
It’s against the law to be sexually harassed in the following situations:
- At work – such as by your boss or other people you work with;
- At school – such as by a teacher or another student;
- When you are buying or selling goods or services – such as when you are in a restaurant or if you are catching a taxi;
- When you are looking for accommodation, like a hotel , or buying or renting a house or apartment;
- When you are a member of a club, such as a sporting or social club;
- When you are dealing with a person working for the government;
- When you are looking for a job.
Criminal law may protect you from this kind of behaviour in other states and territories if it amounts to sexual assault. See the Sexual Assault Fact Sheet for more information.
Sexual harassment can happen to anyone, whether they are male or female. You shouldn’t be afraid to speak up if it happens to you.
Peter and Lisa broke up after a two-year relationship. They work at the same office. At the after-work drinks (which Peter couldn’t go to), Lisa showed all her work colleagues a silly video of Peter she had on her phone in which he was taking off all his clothes and dancing.
Assuming Peter did not consent to Lisa’s actions, her actions would constitute sexual harassment, which is against the law. Also, if Peter was under 18 when the video was taken, then Lisa could be charged with the crime of ‘disseminating child pornography’ (check out our page on Sexting for more information about this). Even if Peter was over 18, Lisa could be charged with distributing an intimate image.
What is the difference between sexual harassment and sex discrimination?
Sex discrimination happens when you are treated less favourably than another person because of your sex. It can happen at work, shopping, at school or in other situations. Sexual harassment can also be a form of sex discrimination in some circumstances. For more information on discrimination see our Lawstuff page on Discrimination.
What can I do if I have been sexually harassed?
You have lots of options. You can do the following:
1 Tell them to stop: if it is possible, tell the offender verbally or in writing that their behaviour is offensive and unacceptable and that you want it to stop immediately. If this isn’t possible, you should discuss it with a person who is in charge, such as your work supervisor or teacher.
2 Keep a written record: you should keep a written record of everything that has happened, when it happened and the names of any people who saw what happened. You can keep notes in your phone if you want.
3 Get some support: if someone has sexually or indecently assaulted you, you can call 1800 RESPECT to talk about your situation. They can help you with things like reporting to the police. You can also call your local police station to report what happened. For more information on sexual assault and who you can talk to, please visit our Lawstuff page on Sexual Assault.
4 Make a complaint to your employer or school: depending on where the harassment occurs there may be guidelines or a policy which you need to follow to report what has happened and make a complaint. For example:
(a) Workplace – most workplaces will have a sexual harassment policy which will outline the complaint procedure.
(b) School –schools may have their own policy or complaints procedures for sexual harassment which can be accessed by students. The education department in your State or Territory may also have a policy for sexual harassment that will apply to your school.
5 Make a complaint to a tribunal: if the issue is still not resolved or didn’t happen at school or work, you have the right to make a complaint to the Australian Human Rights Commission which is a statutory tribunal set up by the Commonwealth Government, or to the relevant Commission or Board set up by your State or Territory government.
You should get legal advice about which organisation to make your complaint to, because the federal law is different to State and Territory laws. It is usually free to make a complaint. You generally must make the complaint no more than 12 months after the harassment happened.
If you make a formal complaint to a tribunal and the matter is not resolved, you may have the option to go to a tribunal or court hearing. You should get advice about this.
You can find the details for the Legal Aid in your state or territory at the following link: http://www.australia.gov.au/content/legal-aid
You can also find out more about making a complaint by contacting the Commissions using the contact details listed below.
You may feel scared about making a complaint, but it is important to know that it is against the law for someone to treat you unfairly or harm you because you made a complaint against them. If that happens, they can be fined or imprisoned.
Sexual harassment is unacceptable and you should speak to your parents or another adult that you trust. If you do not speak to someone, or report what happened, then no one will know what is going on and they can’t help you. We have provided you with a list of important contacts to call at the end of this fact sheet if you would like to talk to someone confidentially.
Where else can I get help?
If you’ve been sexually harassed at work, you can call 1800 RESPECT to talk to a counsellor. You can also call the Australian Human Rights Commission, or anti-discrimination tribunal in your State or Territory to find out how to make a complaint.