Sexual Harassment:

There is law that makes it unlawful for one person to commit an act of sexual harassment on another. There are various situations where this may occur, including employment and educational circumstances. There are different types of sexual harassment. Sexual harassment can be obvious, overt and intentional, or it can be indirect and unintentional. Examples of sexual harassment can include conduct that is verbal, physical, it can be repeated or on a one-off occasion. Sexual harassment can be committed against another person by either a male or a female, and its can be committed by or between same-sex oriented men or women. Some particular examples of sexual harassment include the following:

• Relating to a person with unnecessary or inappropriate familiarity – this can include brushing past people or touching them;
• Staring at someone, or leering at them;
• Making comments or jokes of a suggestive nature;
• Taunting or insulting a person in a way that includes sexual innuendo or implication;
• Asking questions or communicating in any way (such as email, text or entries on social networking sites) that are unwelcome and intrusive, that cause discomfort or awkwardness;
• Putting up posters that will have a similar disconcerting affect on another person;
• Browsing sexually explicit material (whether print or online);
• Constant and unwelcome sexual advances on another person.

This is one of the most frequently complained about kinds of sexual harassment. For example, complaints for workplace sexual harassment constitute the bulk of matters that are dealt with by the Australian Human Rights Commission, which states that:

“Every year, sexual harassment in the workplace is one of the most common types of complaints received by the Commission under the Sex Discrimination Act. In 2009 – 2010, 21% of all complaints to the Australian Human Rights Commission were under the Sex Discrimination Act, and 88% of those complaints related to sex discrimination in the workplace. The wide use of new technologies such as mobile phones, email and social networking websites creates new spaces where sexual harassment may occur.”^[3]

Needless to say, harassing people at work is against the law whether it is committed by an employer or employee, worker, subcontractor or volunteer.

[3] See n 1 supra.

Employers should be mindful of the harmful effects that workplace sexual harassment can have on their business, as well as the welfare of the people working for them. This is because the welfare of those people is directly connected to the success of their commercial business interests. Where there is sexual harassment, performance will be deleteriously affected.

Although the person committing the act of sexual harassment is primarily responsible for their actions, if they are employees in a company, the company will bear the ultimate responsibility through vicarious liability laws. The one way that a vicarious liability may be avoided by an employer where his employee sexually harasses another, is by having in place mechanisms that seek to prevent sexual harassment at work.

Under the Sex Discrimination Act 1984 (Cth), an employer will have to take “all reasonable steps” to ensure the risks of sexual harassment are minimised. This is a term that the Act does not define or explain clearly. It is therefore something that will be determined on a case by case basis, in accordance with the facts of each specific situation. Some general observations can however be made in relation to what can constitute “all reasonable steps”, and these include:

• Having an official company Sexual Harassment Policy and requiring it to be read by your employees, workers, agents, contractors and volunteers;
• Institute regular training seminars to make sure that those working with you are aware of the issues and concerns;
• Create fair and good faith internal dispute resolution procedures which are designed to solve any problems that might arise (remember, not everyone who is technically liable for a claim of sexual harassment acts so knowingly, and it is always better to be able to resolve an issue than allow it to fester and become a greater problem);
• Take action when complaints are made of sexual harassment.

There may be other areas of law that cross-over with sexual harassment in the workplace, including privacy laws, defamation, occupational health and safety as well as various industrial laws. These will also have to be born in mind. You are encouraged to access the information concerning those areas on this website to see what services we can offer to you.

Navado is in a position to advise you, whether you have an established business or are setting one up, whether you have had a claim made against yourself or one of your employees, or whether you just need information to ensure you and your business are covered. We can provide advice:

• Drafting the right Sexual Harassment Policy for your workplace or business;
• Advising you on your rights and liabilities in relation to Codes of Practice of Employees;
• Assist you in dealing with any claims made against you or any claims you are contemplating to make against another person;
• Any other process or issue that may be relevant to you and your business.

The law in relation to sexual harassment is complex and often undergoes regular amendments, updates and changes. For this reason, it is prudent to obtain the services of a legal practitioner so that you know precisely what your rights and liabilities are at the time that your issue arose.

Complaints can be made to the Australian Human Rights Commission, who will then investigate any claim and attempt to resolve it through a process of conciliation. However, there is no guarantee that this may be successful. If the conciliation does not solve the problem, you may need to go to Court to pursue your matter further.

Not many people that experience sexual harassment will make a complaint and pursue it to finality. This is because the process can be a tedious, stressful and uncomfortable one. It can also be due to the fact that not many people know precisely what sexual harassment is. Examples of sexual harassment are outlined above. We at Navado understand that this can be an embarrassing and hurtful problem for any person who has unfortunately experienced sexual harassment. We are mindful of your need for privacy and will approach your case with the appropriate decorum and sensitivity.

Sexual harassment does not just take place in the workplace, although it sometimes seems that this is the place where it is most prevalent. Sexual harassment can also occur in educational institutions such as schools, private or preparatory collages, universities and other centres of learning.

The rights and liabilities of people are not held up to a lesser standard just because the relationship is that of teacher or lecturer and student. Some might argue that this relationship may in fact make the duties incumbent of teachers and lecturers far greater due to the position of relative power they find themselves vis-a-vis the student. However, this does not mean that it is impossible, or indeed inconceivable, that a student can sexually harass a teacher or lecturer.

The type of activity and behaviour that constitutes sexual harassment in this context, and the rights and liabilities that attach to any party involved in a sexual harassment dispute is the same as was outlined above. The Sex Discrimination Act 1984 (Cth) makes it unlawful for a teacher or a student who is over the age of 16 to sexually harass another student, and a student over the age of 16 to likewise sexually harass a teacher.

A person who experiences an act of sexual harassment can make a complaint to the Australian Human Rights Commission, but there is no guarantee that this complaint will be successfully dealt with to finality. The Commission will investigate the issue and attempt to reach some form of resolution via a process of conciliation, however, if this does not work, then you may find yourself in a position where you will have to go to Court to pursue your rights.

A complaint of sexual harassment cannot be made against a person who is under the age of 16. Be that as it may, the school, university or other educational institution will have a responsibility to ensure that the environment is harassment free and they may be made the subject of any complain in such a situation.

If you are a school, university, college or other educational institution, we encourage you to read the section about “Sexual Harassment information for Employers” where you can find more information including what we can do to assist you in your matter or inquiry.

If you are a student, we encourage you to read the section about “Sexual Harassment information for Employees” where you can find more information including what we can do to assist you in your matter or inquiry.