Sexual Harassment in the Workplace

The one thing that the #MeToo social media campaign has highlighted in recent years is the prevalence of sexual harassment and unwanted sexual advances, particularly in the workplace. Sexual harassment in the workplace is never acceptable, and both employees and employers in Perth and throughout Western Australia should be aware of their legal rights and responsibilities.

In a recent post, we discussed the types of incidents in the workplace that might cause a person to become unwell and subsequently make a claim for workers’ compensation in Western Australia.

In this post, we discuss sexual harassment and how it may provide the basis for a claim in workers’ compensation and damages under the Equal Opportunity Act 1984.

What Is Sexual Harassment?

In simple terms, sexual harassment is constituted when someone makes unwelcome sexual advances, seeks or demands sexual favours, and other verbal or physical conduct of a sexual nature.

Definition of Sexual Harassment

While the tests that determine what constitutes sexual harassment differ slightly between states, according to the Australian Human Rights Commission (AHRC), the sexual harassment definition can be broken down into the following points:

• It is of a sexual nature.
• It is unwelcome or unsolicited.
• The person who behaved that way did so with the intention of offending, humiliating or intimidating the victim, OR a reasonable person would anticipate that the person being harassed would be offended, humiliated or intimidated by that behaviour in those circumstances.

In short, sexual harassment is a type of sex discrimination, which is illegal.

Sexual Harassment Laws

There is State and Commonwealth legislation that deals with sexual harassment laws in Australia.

The Sex Discrimination Act 1984 (Cth) defines sexual harassment as: “… unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated”. This includes any behaviour of a sexual nature such as physical contact, advances, sexually explicit comments, suggestive comments or jokes and displaying pornographic material.

Below you will find the complete list of Commonwealth and State legislation dealing with sexual harassment laws in Australia:

• Sex Discrimination Act 1984 (Cth)
• Equal Opportunity Act 1984 (WA)
• Anti-Discrimination Act 1991 (Qld)
• Equal Opportunity Act 2010 (Vic)
• Anti-Discrimination Act 1977 (NSW)
• Equal Opportunity Act 1984 (SA)
• Anti-Discrimination Act 1992 (NT)
• Anti-Discrimination Act 1998 (Tas)
• Discrimination Act 1991 (ACT)

What Is Classified as Sexual Harassment in Australia?

If you're wondering what constitutes sexual harassment in the workplace, let's have a more detailed look.

An important thing to note with regard to workplace sexual harassment in Australia is the fact that the behaviour can be related to a one-off incident and doesn’t have to be deliberate or repeated to be considered unlawful.

The behaviour or act can still be considered sexual harassment even if the person committing it didn’t mean to offend, humiliate or intimidate the victim, and it can be verbal, physical or visual in nature. Lastly, with certain types of sexual harassment, criminal laws can apply. This is specifically with sexual harassment of a criminal nature, such as sexual assault or indecent exposure.

Sexual coercion is also a form of sexual harassment, and it may be the rarest type. It can manifest in two ways: quid pro quo or implied threats to job security if you don't comply with demands for sex or sexual favours. A classic example would be "sleep with me or else"--this might seem like an obvious threat, but it's actually called "quid pro quo", which translates from Latin as "something for something".

Examples of Sexual Harassment in the Workplace

Some things that the Australian Human Rights Commission considers to be examples of sexual harassment include:

• Physical touching that is unwelcome, unnecessarily familiar and/or unsolicited
• Staring or leering
• Suggestive jokes, insults, taunts and comments
• Unwanted requests to see someone outside of work, specifically to go out on dates
• Asking for sex for any reason
• Sending pornographic content or rude jokes by email, text message or other methods
• Sending sexually explicit messages by text or email
• Sexually explicit physical contact
• Asking intrusive questions about someone’s body or private life
• Displaying content with a sexual nature, such as posters, magazines or screen savers

Alarming Statistics of Sexual Harassment in the Workplace

In 1984, the Sex Discrimination Act 1984 was introduced, and successive Sex Discrimination Commissioners have identified the elimination of sexual harassment in the workplace as a key priority.

But according to the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report by the AHRC, almost 40 years later, Australia now lags behind other countries in responding to and preventing sexual harassment.

Their 2018 National Survey referenced in the report found the following:

One in three people had experienced sexual harassment at work in a five-year period. Of these, almost two in five women (39 per cent) had experienced sexual harassment and just over one in four men had (26 per cent). Men are more likely to be the harasser, with four out of five people (79 per cent) saying they were harassed by men.

Younger people in the workplace were more likely to have experienced sexual harassment than any other age group, with young women more likely to have been victims than young men. 54% of sexual harassment/assault victims are aged 18-34.

People who already experience higher rates of disadvantage and discrimination, such as those with disabilities, people from the LGBTQIA+ community and people of colour, are more at risk when it comes to sexual harassment.

Fewer than one in five people (17 per cent) said they made a formal complaint about the sexual harassment they experienced, and of those – 45 per cent said nothing had changed at their workplace as a result.

Unfortunately, wrongful accusations of sexual harassment are on the rise as well and they can lead to a devastating fallout. No one should endure or tolerate sexual harassment, such behavior should be reported to ensure a safe and respectful environment for all.

An Employer's Obligations with Regard to Sexual Harassment

Every employee is entitled to a workplace where they are not at risk of being the victim of discrimination, sexual harassment and vilification. Every employer has a duty of care to make sure that an employee’s health and wellbeing at work is protected. This means that they have to take reasonable steps to prevent sexual harassment or any other kind of harassment from occurring.

In order to do this, an employer should:

• Implement and enforce policies regarding discrimination and harassment.
• Provide regular training regarding appropriate workplace behaviour.
• Set out a clear complaint process so employees know the steps to take if they have a sexual harassment-related issue.
• Make it clear that reporting discrimination or sexual harassment will not have an impact on their reputation, career prospects or workplace relationships.

Employee Responsibilities Regarding Sexual Harassment

Just like an employer has to ensure a workplace that is free of discrimination and sexual harassment for their employees, so too do their employees have a responsibility to not engage in behaviour that constitutes inappropriate workplace behaviour – including being discriminatory or committing sexual harassment.

Firstly, they have to comply with their employer’s policies regarding this type of conduct. Just as importantly, they may not encourage or request another person to conduct any form of inappropriate behaviour. If they do and are found out, they too can be held liable for the harasser's actions.

Compensation for Sexual Harassment and Assault at Work

If an employer doesn’t meet their obligation to provide a workplace that is free of harassment of all kinds, including sexual harassment and sexual assault, they can be held vicariously liable for the sexual harassment an employee experiences. What this means is that an employer can be held accountable for the actions of the harasser and for not adequately protecting the victim from the behaviour or for other ill-treatment after they’ve reported the problem.

Several sexual harassment cases have been brought before the courts in recent years, and the victims were awarded substantial damages of compensation by the courts. What this makes clear is the fact that the Federal Court of Australia will not stand for an employer not taking all reasonable steps to prevent sexual harassment from continuing once it has been reported.

And if it happens to be the owner of a business who is committing sexual harassment against their employees, then the employer has, without doubt, failed in their duty of care to their employees and will be held liable to pay compensation.

Sexual Harassment Case Study

Collins v Smith (Human Rights) [2015] VCAT 1992 (23 December 2015)

Ms Collins was a worker who claimed and received workers’ compensation payments under both the Victorian statutory workers’ compensation scheme and the Equal Opportunity Act. The damages she was awarded by the Victorian Civil and Administrative Tribunal came to over $330,000.

One issue before the tribunal was whether the Victorian workers’ compensation act limited the amount of compensation that could be awarded because the respondent had submitted that Ms Collins could only recover damages for personal injury in accordance with the workers’ compensation act.

Judge Jenkins rejected the respondent’s argument and stated that the limits imposed by the workers’ compensation act do not apply to an action for damages for physical or mental injury under the Equal Opportunity Act.

Ms Collins was awarded general damages in the amount of $180,000. In addition to this amount, she was also awarded:

• Aggravated damages of $20,000
• $120,000 for past and future loss of earnings and superannuation
• $12,280 for out-of-pocket expenses

What to Do If You Are Sexually Harassed in the Workplace

You do not have to deal with sexual harassment in the workplace. However, the reality is that most people do endure these unwanted assaults for fear of losing their job, not being believed or knowing that the workplace culture does not treat sexual harassment complaints seriously.

As we’ve already mentioned though, an employer can be held liable for this type of behaviour.

How to Report Sexual Harassment

If you are experiencing sexual harassment at work, then you should do the following:

• Document any offers or threats that are being made for sexual favours.
• Record the details of any witnesses present at the time of the harassment.
• Document any sexual advances or comments.
• Do not delete any emails or text messages, and also print them out to ensure they are documented even if you accidentally do delete them.
• Report any sexual harassment you have experienced in the workplace to your employer. Make sure to do this in writing even if you have made a verbal report, and ask the employer to investigate.
• Stress and other mental health impacts of workplace sexual harassment can include headaches, hair loss, weight fluctuation, sleep deprivation, gastric or respiratory problems, exhaustion, nausea and musculoskeletal pain. If you start experiencing any of these, report them immediately to your doctor.

What's the difference between sexual harassment, sexual abuse sexual assault and rape?

There is often a bit of confusion when it comes to the difference between sexual offences.

Sexual harassment is a broader term than sexual abuse, sexual assault and rape. In fact, sexual harassment includes all three categories of proscribed behaviour. Sexual harassment can be verbal or physical and can include unwelcome advances, requests for sexual favours, and other conduct of a sexual nature that interferes with an individual’s work performance or creates an intimidating, hostile or offensive working environment.

To give you a better understanding of the difference between the three aforementioned types of sexual harassment, we briefly summarised each one for you:

Sexual Abuse

Sexual abuse is when someone (mostly referring to a child under the age of 18) has been exposed to sexual behaviours that are exploitative and/or inappropriate for their age. There are many ways this can happen, such as being touched inappropriately by family members, strangers in the community you live in, coaches at your school or in the workplace.

Sexual Assault

Sexual assault and rape are often used interchangeably by the media. The term sexual assault by definition includes different types of sexual crimes, including but not limited to inappropriate touching of private parts, kissing, groping and pressuring or blackmailing a victim to do sexual things to the perpetrator. Rape falls under the category of sexual assault but the definition is more specific.

Rape

Throughout the world, rape is a horrific crime that remains one of our society's most pervasive and insidious threats. The statistics are startling: every 107 seconds someone becomes victim to sexual violence, including rape.

Rape is defined as a sexual offence involving the penetration of a person's genitalia. However, penetration of the genitalia is not restricted to penal penetration, but can also occur by means of an object, part of a body or mouth.

Contact a Workers’ Compensation Lawyer

If you are being sexually harassed at work and your employer is not responding appropriately to your complaints, you should seek legal advice from sexual harassment lawyers. Your employer may be liable to pay compensation under the West Australian workers’ compensation act and damages under the West Australian Equal Opportunities Act.

Perth City Legal provides accurate, practical legal advice in Western Australia. Contact us today for a confidential, free initial consultation.