Chapter 3 - Working without fear: Results of the Sexual Harassment National Telephone Survey (2012)

Sex Discrimination

Working without fear:

Results of the Sexual Harassment National Telephone Survey

Chapter 3: Sexual harassment

Chapter 3 examines the legal prohibition against sexual harassment in the Sex Discrimination Act, which is the basis of the 2012 National Survey.¹² It begins with a brief examination of the legal definition of ‘sexual harassment’. It then provides examples of behaviour that are likely to constitute unlawful sexual harassment and identifies the areas of public life and situations in which sexual harassment is unlawful.

3.1 Definition

It is unlawful under the Sex Discrimination Act for a person to sexually harass another person in certain areas of public life.

The Act provides a comprehensive definition of sexual harassment,¹³ which targets unwelcome sexual behaviour that is likely to offend, humiliate or intimidate.

The 2012 National Survey relied on a simplified version of this definition (excerpted below), for the purposes of clarity and brevity during the interview process.

What is sexual harassment?

Sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which, in the circumstances, a reasonable person, aware of those circumstances, would anticipate the possibility that the person would feel offended, humiliated or intimidated.

It is important to note that the legal definition of sexual harassment was amended in 2011,¹⁴ which, in turn, required changes to be made to the simplified definition used in the 2008 National Survey.

The revised definition of sexual harassment includes circumstances in which a reasonable person would anticipate the possibility that the other person would be offended, humiliated or intimidated by the behaviour. This is a lower threshold than the previous test, which required that a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.

The revised definition also outlines some of the circumstances that may be taken into account when determining whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. These circumstances include:

the sex, age, marital status, sexual preference, religious belief, race, colour or national or ethnic origin of the person harassed
the relationship between the person harassed and the alleged harasser
any disability of the person harassed
any other relevant circumstance.¹⁵

3.2 Forms of sexual harassment

Sexual harassment can take many different forms, both physical and non-physical. In addition, it can occur through a variety of mediums, including in person or through the use of new technologies, such as social media.

Examples of behaviours that are likely to constitute unlawful sexual harassment include physical contact, staring or leering, indecent exposure, comments or jokes of a sexual nature, sexual propositions, displaying offensive material, sending sexually explicit texts and asking intrusive questions about a person’s private life or physical appearance.

Some types of behaviour, such as sexual assault or rape, may constitute a criminal offence, in addition to constituting sexual harassment.

It is important to note that sexual harassment has nothing to do with mutual attraction or friendship.

Complaint of sexual harassment of a physical nature*

The complainant was employed with the respondent company in a hospitality role. She alleged that during the course of her employment she was sexually harassed by her male manager, which included him placing his arm around her shoulder, slapping her bottom and rubbing himself against her. On being advised of the complaint, the company agreed to participate in a conciliation conference. The complainant did not wish to continue the employment relationship and the complaint was resolved with the company agreeing to pay the complainant $73,000 as compensation.

Complaint of sexual harassment of a non-physical nature*

The complainant is employed to undertake packing duties with the respondent retail food company. The complainant alleged she was sexually harassed by her manager. She claimed the manager’s behaviour included sending her inappropriate text messages, sending her a pornographic video and making comments of a sexual nature. When advised of the complaint, the company agreed to participate in conciliation. The complaint was resolved with an agreement that the company would pay the complainant $3,000 compensation and re-credit the complainant’s sick leave for the 75 hours she had taken in relation to the alleged harassment. The complainant continued her employment with the company.

* Complaints are resolved in conciliation at the Australian Human Rights Commission on a without-admission-of-liability basis

3.3 Areas in which sexual harassment is unlawful

The Sex Discrimination Act prohibits sexual harassment in a number of areas of public life, including employment, education, the provision of accommodation, the provision of goods, services and facilities, and in clubs.

Sexual harassment is prohibited in specified situations in each of the areas of public life covered by the Act. In the area of employment, for example, it is unlawful for a person to sexually harass specified classes of workplace participants, including:

an employee or prospective employee
a fellow or prospective employee
a fellow or prospective partner in the same partnership
another workplace participant at either or both of their workplaces.¹⁶

Complaint of sexual harassment by a co-worker*

The complainant alleged that she was sexually harassed by a co-worker at the aged care facility where she works. The complainant claimed the co-worker made comments about her breasts and on one occasion pushed her on a bed, lay on top of her, grabbed her genitals and breasts and rubbed his genitals against her. The complainant said she made an internal complaint, but this was not taken seriously.

On being notified of the complaint, the co-worker and employer agreed to participate in a conciliation conference. The complainant did not want to continue her employment with the respondent facility and the complaint was resolved with an agreement that the employer would pay her $50,000 compensation. The individual respondent’s employment was terminated and he also agreed to undertake anti-discrimination training.

Complaint of sexual harassment by a co-worker*

The complainant was employed as a tradesman / bricklayer with the respondent construction company. The complainant claimed a male co-worker sexually harassed him during a social gathering at a work campsite. The complainant claimed the co-worker grabbed his chest, stomach, testicles, buttocks and penis. The complainant had not returned to work since the incident.

The respondent company confirmed that an incident occurred on a work campsite between the complainant and his co-worker. The company submitted that it could not determine from its investigations what had happened and whether the complainant was sexually harassed. The company advised that it offered to move the complainant to a different worksite the day after the alleged incident.

The complaint was resolved with an agreement that the parties continue the employment relationship with assurances that the complainant would not have to work with the co-worker who was alleged to have sexually harassed him. The company also agreed to pay the complainant $20,000 compensation for his hurt and distress.

* Complaints are resolved in conciliation at the Australian Human Rights Commission on a without-admission-of-liability basis.

In the area of ‘the provision of goods, services and facilities’, it is unlawful for a person to sexually harass another person in the course of providing or offering to provide, seeking or receiving goods, services or facilities. This covers sexual harassment by service providers as well as customers and clients, for example if a customer slaps a bartender on her bottom and calls her offensive terms while she is at work or if a client says he will not instruct a lawyer unless she ‘has a bit of fun’ with him on a business trip.¹⁷

It should be noted that the range of situations in which sexual harassment is prohibited was expanded in 2011 and this was reflected in the changes made to the survey questionnaire for the 2012 National Survey.

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