Sexual Harassment in the Workplace - A Short Guide to the Sexual Harassment Code of Practice

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A Short Guide to the Sexual Harassment Code of Practice

A Short Guide to the
Sexual Harassment Code of Practice

What is sexual harassment?

Sexual harassment is unwelcome sexual conduct which makes a
person feel offended, humiliated and/or intimidated where that reaction
is reasonable in the circumstances. Sexual harassment in employment
is unlawful under the Sex Discrimination Act 1984 (Cth).

Whether the behaviour is unwelcome is a subjective test: how the conduct in question was
perceived and experienced by the recipient rather than the intention
behind it.

Whether the behaviour was offensive, humiliating
or intimidating is an objective test: whether
a reasonable person would have anticipated that the behaviour would
have this effect.

Sexual harassment in the workplace can take various
forms. It can involve unwelcome touching, hugging or kissing; suggestive
comments or jokes; unwanted invitations to go out on dates or requests
for sex; insults based on your sex or sexually explicit emails or SMS
messages.

Both men and women can experience sexual harassment
at work, however, it is most commonly experienced by women.

For more information
about sexual harassment see 1.2.

When is sexual harassment prohibited?

Sexual harassment is prohibited in almost every employment
situation and relationship. 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. It is also prohibited between almost all workplace
participants.

For more information
on who is covered by sexual harassment laws see 2.2.

What are my legal obligations as an employer?

There are good practical reasons for preventing sexual harassment
in the workplace- policies and procedures preventing harassment assist
employers in maintaining positive workplace relationships and can improve
employee motivation and performance. However, there are also laws requiring
employers to take preventative action against sexual harassment.

As an employer, you may be held legally responsible
for acts of sexual harassment committed by your employees. This is called
'vicarious liability'. The Sex Discrimination Act makes employers liable
unless they have taken all reasonable steps to prevent
sexual harassment taking place.

There are two main actions that employers must take
to show that they have taken all reasonable steps and avoid liability
for sexual harassment.

First, to prevent sexual harassment an employer should
have a sexual harassment policy, implement it as fully as possible and
monitor its effectiveness. Of course, what is reasonable for some employers
may not be for others.

For information
on what a sexual harassment policy should contain see 4.2.2.

For information
on how to implement and monitor a sexual harassment policy, see 4.2.

Secondly, if sexual harassment does occur, the employer must
take appropriate remedial action - an employer should have appropriate
procedures for dealing with grievances and complaints once they are
made.

For more information on liability and "all reasonable steps" see 3.2 and 4.2.

Other employer duties

In managing sexual harassment in the workplace, you may also
have obligations under other laws, such as privacy, defamation, occupational
health and safety and industrial laws.

Are there any specific guidelines for small business?

There is no exemption in the Sex Discrimination Act for small
business. Employers in all small businesses, whatever the size, may
be vicariously liable for acts of sexual harassment committed by employees
unless all reasonable steps were taken to prevent it occurring.

Small businesses will still have to write and implement
a sexual harassment policy and they still need to deal with complaints
in an appropriate way. However, courts will take into account the size
and resources of a business in deciding what is reasonable to expect
them to do to prevent sexual harassment.

Further assistance

For further assistance on sexual harassment issues
employers can contact HREOC or their State or Territory anti-discrimination
agency. Contact
details for these organisations are at Appendix B. Employers
may also seek assistance from employer organisations, small business
or industry associations.