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
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 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; and
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.

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Last updated:
24 March 2004.