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

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.