Chapter 4: When is sexual harassment prohibited? - Effectively preventing and responding to sexual harassment: A Code of Practice for Employers (2008)
Effectively preventing and responding to sexual harassment: A Code of
Practice for Employers
Chapter 4: When is sexual
harassment prohibited?
Contents
Key points
4.1 When is sexual harassment prohibited?
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4 When is sexual
harassment prohibited?
- The Sex Discrimination Act prohibits sexual harassment in employment. This
will include recruitment and selection processes as well as harassment occurring
in the course of employment. 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. - Sexual harassment is prohibited within most employment relationships
involving employers, employees, commission agents, contract workers and
partners. Table 4.1 sets out who is covered by federal sexual harassment
legislation. - Sexual harassment is also unlawful by:
- members of bodies or authorities responsible for occupational
qualifications who sexually harass a person seeking a qualification - members or staff of registered organisations such as unions who
sexually harass a member of the organisation - staff and adult students of educational institutions
- a person providing goods, services and accommodation
- a person disposing of or acquiring land
- a member of a committee of management of a club
- a person administering Commonwealth laws and
programs.
- members of bodies or authorities responsible for occupational
4.1 When
is sexual harassment prohibited?
Sexual harassment is prohibited in most workplace situations and
relationships. The key to understanding who is covered by federal sexual
harassment legislation is the relationship between the harasser and the person
being harassed. The table below shows which relationships are covered by the Sex
Discrimination Act.
Note that sexual harassment does not necessarily have to take place in the
workplace to be unlawful. Sexual harassment in employment may also take place in
locations associated with work, such as conferences and training centres,
restaurants for work lunches, hotels for work trips or office parties. Sexual
harassment may also be covered by the legislation if it occurs away from the
workplace but is the culmination or extension of events occurring in the
workplace.
Table 4.1: When sexual harassment is prohibited
|
Workplace participant
|
Responsibility to employees
|
Responsibility to workplace participants
|
Responsibility to clients and customers
|
Responsibility in administering Commonwealth laws and
programs |
|---|---|---|---|---|
|
Employers must not sexually harass
|
A current or prospective employee; a current or prospective contract worker
or commission agent |
A workplace participant carrying out duties in the same workplace as the
employer |
A client, customer or any other person in the course of providing goods,
services and facilities |
A person in the course of performing any function, exercising any power or
carrying out any responsibility in the administration of a Commonwealth law or program |
|
Employees must not sexually harass
|
A co-worker or prospective co-worker
|
A workplace participant carrying out duties in the same workplace as the
employee |
A client, customer or any other person in the course of providing goods,
services and facilities |
A person in the course of performing any function, exercising any power or
carrying out any responsibility in the administration of a Commonwealth law or program |
|
Contract workers/
commission agents must not sexually harass
|
A fellow contract worker or commission agent
|
A workplace participant carrying out duties in the same workplace as the
contract worker or commission agent |
A client, customer or any other person in the course of providing goods,
services and facilities |
A person in the course of performing any function, exercising any power or
carrying out any responsibility in the administration of a Commonwealth law or program |
|
Partners must not sexually harass
|
A co-partner or prospective partner
|
A workplace participant carrying out duties in the same workplace as the
partner |
A client, customer or any other person in the course of providing goods,
services and facilities |
A person in the course of performing any function, exercising any power or
carrying out any responsibility in the administration of a Commonwealth law or program |
|
Union employees must not sexually harass
|
A co-worker or prospective co-worker
|
A workplace participant carrying out duties in the same workplace as the
union employee |
A union member or a person seeking to become a union member; A client,
customer or any other person in the course of providing goods, services and facilities |
A person in the course of performing any function, exercising any power or
carrying out any responsibility in the administration of a Commonwealth law or program |
|
Union members must not sexually harass
|
A fellow union member or a person seeking to become a union member
|
|||
|
Employment agency operators and staff must not sexually harass
|
A client, customer or any other person in the course of providing goods,
services and facilities |
A person in the course of performing any function, exercising any power or
carrying out any responsibility in the administration of a Commonwealth law or program |
In addition, each of these workplace participants is also covered by the
general prohibitions in the Sex Discrimination Act against victimising
complainants or causing or permitting sex discrimination, including sexual
harassment.
Workplace example: Sexual harassment by customers or clients
Some employees or contractors, such as those working in the entertainment or
hospitality industries, are vulnerable to sexual harassment by customers or
clients.
The sexual harassment provisions of the Sex Discrimination Act do not
explicitly cover employees or contract workers if they are sexually harassed by
customers or clients. However, depending on the circumstances, an employer may
be found liable for sex discrimination if they treated an employee or contract
worker less favourably than they would have treated someone of the opposite sex
by failing to protect them from harassment.
For example, in the case of Smith v Sandalwood Motel (1994) EOC 92-577
a motel owner was found to have discriminated against two women he engaged to
perform as singers in his motel. The Western Australian Equal Opportunity
Tribunal found that the motel owner did nothing to prevent the women being
subjected to sexualised and offensive behaviour by bar patrons “in an
atmosphere close to violence”. The Tribunal found that the motel
owner’s neglect meant that the women were subjected to less favourable
treatment than a male contractor would have received.
In order to protect themselves from liability employers should avoid putting
employees in situations where they may be vulnerable to harassment: for example,
not requiring women to wear sexy clothing to promote products or expecting them
to behave flirtatiously with clients. When they see clients or customers
harassing staff, employers should take steps to stop the behaviour.
Workplace example: Social functions and alcohol
Sexual harassment between employees is unlawful at social functions that are
connected to work. The fact that the work party takes place at a venue outside
of the workplace or even outside of working hours will not affect
employees’ liability for their actions. Employers will also remain
vicariously liable for the behaviour of their staff at work social functions,
unless they took all reasonable steps to prevent sexual harassment
occurring.
When drinking, people will often act in ways they otherwise would not.
Sometimes people view drinking and socialising as an opportunity to behave
towards co-workers in a sexual or offensive way.
In order to protect themselves from vicarious liability for sexual
harassment, employers may want to remind their employees that:
- sexual harassment in employment will not be tolerated wherever and whenever
it takes place - employees are responsible for their inappropriate behaviour at a work social
function - being drunk is not a defence to sexual harassment.
Employers
should also remind managers to model appropriate behaviour and be mindful that
alcohol is served in a responsible way.
