By Joseph Kelly, Kelly Workplace Lawyers
A person sexually harasses another person if they:
- make an unwelcome sexual advance, or;
- an unwelcome request for sexual favours, or;
- engage in other unwelcome conduct of a sexual nature
in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
What are some examples of this?
Sexual harassment can include:
- inappropriate physical contact
- intrusive questions about a person’s private life or physical appearance
- sharing or threatening to share intimate images or film without consent
- unwelcome touching, hugging, cornering or kissing
- repeated or inappropriate invitations to go out on dates
- sexually suggestive comments or jokes that offend or intimidate
- requests or pressure for sex or other sexual acts
- sexually explicit pictures, posters or gifts
- actual or attempted rape or sexual assault
- being followed, watched or someone loitering (hanging around)
- sexually explicit comments or inappropriate advances made in person or in writing, or indecent messages (SMS, social media), phone calls, virtual meetings or emails – including the use of emojis with sexual connotations
- sexual gestures, indecent exposure or inappropriate display of the body
Employees have a right to a workplace that is free of sex-based hostility. That means that even if an employee is not being directly pressured into a sexual relationship, they may still be the victim of sexual harassment if the harassment relates to their sex.
Examples of sex based hostility include;
- Using offensive language, jokes, or sexual innuendo that targets the sex of a person
- Making sexist, misogynistic, or misandrist remarks
- Displaying obscene or pornographic materials
What can be done about it?
Changes to the Sex Discrimination Act 1984 (SDA) in 2022 expanded employees’ protec-tions to include sex based harassment, sex based hostility, lowered of the threshold for what constitutes sexual harassment, and placed positive obligations onto employers.
The changes also increase enforcement powers given to third parties for investigations and actions against employers that are not meeting their obligations.
By putting positive obligations on employers, businesses now have a positive duty to eliminate, as far as possible:
- sex discrimination in a workplace context
- sexual harassment in connection with work
- sex-based harassment in connection with work
- conduct that amounts to subjecting a person to a hostile work environment on the grounds of sex, and
- certain acts of victimisation.
Previously the law said that the victim had a right against your harasser. Whereas now the law says that the employer has a positive obligation to protect the victim.
Furthermore, changes to the SDA codified that sexual harassment is serious misconduct meaning that the harasser can have their employment immediately terminated if allegations are proven.
Being sexually harassed can be extremely stressful and scary.
If you are experiencing sexual harassment or sex based hostility in your workplace, seeking immediate support whether it is from a health provider, colleague, friend or family member – as well as keeping a detailed diary of events – is important in providing comfort and protection to you during this time.
However, speaking up and being heard is the most important step in eliminating this treatment.
If you believe you are the victim of sexual harassment or a hostile work environment on the grounds of sex, you must report the conduct to your employer.
If your employer does not act, or doesn’t fully address the issue, contact us to discuss further.