Introduction
What is sexual harassment?
Who gets harassed?
What if the person doesn’t say no?
Consequences for employers
Legal consequences
How to prevent sexual harassment in the workplace
Introduction
Sexual harassment is now a high public profile issue. People’s increasing awareness of their rights to protection from sexual harassment in the workplace, and willingness to exercise those rights, makes it crucial for employers to understand what sexual harassment is, what a company’s legal liability may be and what steps can be taken to prevent it.
What is sexual harassment?
Generally, sexual harassment is unwanted behaviour of a sexual nature.
The Anti Discrimination Act 1977 (NSW) (ADA) defines sexual harassment as:
(a) an unwelcome sexual advance, or an unwelcome request for sexual favours, to another person, or
(b) other unwelcome conduct of a sexual nature in relation to the other person,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
The behaviour has to be unwanted, so if there’s some consensual relationship or behaviour at work between colleagues, it is unlikely to be sexual harassment. But people need to be aware that what is acceptable to them may not be acceptable to others, and that it is possible for behaviour to be offensive to someone else without the person engaging in the behaviour being aware of it.
Secondly, the law says that intention is not relevant. Sexual harassment can occur regardless of whether or not a person intended to sexually harass another person.
Sexual harassment can be either a single incident (asking another person for sex), a course of conduct (repeated jokes, touching or sexual innuendo) or a hostile work environment (a sexually charged, intimidating workplace). In most cases it will depend on the type of the behaviour that is being complained about as to whether a single incident is sufficient to amount to sexual harassment.
Importantly, sexual harassment can occur in all human relationships – male to female, female to male, male to male and female to female – although the overwhelming majority is male to female. The focus is on the unwanted aspect of the behaviour that a person is being subjected to, simply by virtue of working in a place where that behaviour is a feature.
Employers are vicariously liable for harassment occurring in the workplace. This could include sexual harassment by the organisation’s clients, visitors to the workplace and Board members, as well as other employees.
What types of behaviour could be harassment?
Sexual harassment can take many forms. For example, any of the following could be sexual harassment:
- sexually explicit material that can be viewed at the workplace, or circulated, or put in someone’s workspace or belongings, or on a computer or fax machine;
- sexually explicit jokes. There is a difference between harmless humour which may refer to gender, and using a sexist joke to harass someone. If the difference is not clear or if someone is offended, the behaviour should stop immediately;
- crude or sexually offensive gestures;
- staring or leering in a sexual manner;
- sexual or physical contact, such as slapping, kissing or touching;
- intrusive questions about sexual activity;
- sexual assault (also an offence under the Crimes Act);
- unwelcome wolf whistling; or
- repeated sexual invitations when the person invited has refused similar invitations before.
Who gets harassed?
A survey by the Human Rights and Equal Opportunity Commission in 2003 found that 28% of survey respondents had experienced sexual harassment, with 65% of this occurring in the workplace.
The majority of sexual harassment is male to female (69%). However, 19% was female to male, 7% male to male, and 2% female to female.
Sexual harassment can also occur at different levels of an organisation – between people on the same level, or even by someone in a lower position than the harassed person.
In the HREOC survey, an average of 32% of respondents experienced harassment from a supervisor or employer, 50% from a co-worker, and 9.5% from a client or customer.
What if the person doesn’t say no?
Even if the person being harassed does not say no, it may still be harassment. Harassment often involves the inappropriate use of power. This power imbalance sometimes makes it difficult for a person being harassed to say no, or even to give an indication that the behaviour is unwanted.
Fear of work-related reprisals often make it hard for the person being harassed to confront the harasser. This is important to bear in mind when making policy or investigating harassment in the workplace.
Employers should encourage their employees to say no to behaviour they feel uncomfortable with, by giving strong messages that sexual harassment is unacceptable and that victimisation of those who speak out against it will not be tolerated.
Consequences for employers
As well as being against the law, sexual harassment is bad for business. Unchecked harassment can lead to increased absenteeism, low morale, decreased productivity, resignations and associated retraining costs, as well as the time spent in harassing or fending off harassment, which is time spent not working. In addition, discrimination complaints and court cases may have significant expenses.
If an employee complains that they are being sexually harassed, it is generally most useful to both the organisation and the person complaining of the harassment if the employer accepts that there may be a problem in the workplace that needs to be taken seriously.
Legal consequences
An employer can be vicariously liable for harassment if they fail to take “reasonable steps” to stop the conduct from occurring or if they simply ignore the conduct of the employee/s involved.
“Reasonable steps” should include developing a policy on sexual harassment, distributing it to everyone in the workplace, training in sexual harassment and discrimination issues, and making sure that everyone understands their rights and responsibilities.
It should also include developing an easy to use complaint-handling procedure, so that any problems can be sorted out effectively and efficiently within the workplace. Managers should also be proactive and deal with any inappropriate behaviour promptly, before it gets out of hand.
Victimisation of anyone who has made a complaint of harassment or anyone who has given evidence as a witness of harassment is also against the law. In some complaints to the Board, the original complaint was found to be unjustified but a related complaint of victimisation was upheld.
How to prevent sexual harassment in the workplace
Workplace culture is the key to preventing sexual harassment, and employers have a strong impact through their attitudes, behaviours and policies.
The goal is to create a workplace where everyone treats each other with respect, understands that everyone is different, and accepts that everyone has the right to feel comfortable and safe at work.
The following may be useful in preventing sexual harassment in the first place:
- conducting a confidential harassment survey to ascertain the level of sexual harassment currently being experienced;
- developing an anti-sexual harassment/“good working relationships” policy;
- making sure that your organisation has an appropriate complaint handling mechanism;
- distributing policies and complaint handling procedures to all employees and providing staff with training to ensure that everyone understands their rights and obligations;
- providing an appropriate environment – remove any potentially offensive material from walls. In order to avoid a backlash, staff should be consulted in this process;
- training in what constitutes sexual harassment; and
- monitoring what happens in the workplace.
