Sexual Harassment (A Code in Practice) - When is sexual harassment prohibited?
Sexual Harassment
(A Code in Practice)
2. When is sexual harassment prohibited?
2.1 General principles
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 2.1 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 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; and
- a person administering Commonwealth laws and programs.
2.2 Explanatory notes
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 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.
Table 2.1: 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. This is discussed below at 3.2.3 and 3.2.2.
Workplace example: Sexual harassment by customers or clients |
Some The sexual harassment provisions of the Sex For example, in the case of Smith v Sandalwood Motel (1994) EOC 92-577 a motel owner In order to protect themselves |
Workplace example: Social functions and alcohol |
Sexual harassment between employees is unlawful When drinking, people will often act in ways In order to protect themselves from vicarious
Employers should also remind managers to model Last updated: |