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Sexual harassment of employees either by their co-workers or by their superiors/supervisors at work is unlawful under the Sex Discrimination Act 1984 (Cth) as well as the equal opportunity legislation which is found in every State and Territory of Australia.

Sexual harassment is unlawful at all stages of the employment relationship from recruitment to termination and this includes:

  • When an employee is applying for a job;
  • During the course of employment;
  • Dismissal from employment; and
  • In any other circumstances that could arise in the context of the employment relationship.
Definition of sexual harassment

Definition of sexual harassment differs from jurisdiction to jurisdiction in Australia. Nevertheless, the types of conduct which would amount to sexual harassment in each jurisdiction are mostly the same. Three elements are particularly relevant in relation to the definition:

  • the behaviour must be unwelcome;
  • it must be of a sexual nature; and
  • it must be such that a reasonable person would anticipate that, in the circumstances, the person who was harassed would be offended, humiliated and/or intimidated.

Whether the behaviour was unwelcome is clearly a subjective test. In this respect, the perception of the conduct by the recipient is relevant and not the intention behind the conduct. What one person considers friendly behaviour can be seen by others as inappropriate, or even offensive. By contrast, whether the behaviour was offensive, humiliating or intimidating is an objective test.

Generally, only a series of incidents or persistent unwelcome conduct would constitute sexual harassment. However, it will still depend on the particular circumstances of the case.

Employer’s vicarious  liability

An employer is liable for the actions of an employee or agent which amounted to sexual harassment, unless the employer has taken reasonable precautions to prevent those actions.

It has been identified in recent case law that the implementation of policies and procedures by the employer may not be sufficient where the employees do not understand the policy properly; management does not act in accordance with the policy, or does not take the complaints related to the policy seriously and does not appropriately investigate these complaints.

Sexual harassment is an issue to be taken very seriously by employers, not only because they may be required to pay compensation to the victim, but also because their reputation can be considerably affected.

Should you have any questions in relation to whether you may be the subject of sexual harassment, please feel free to contact us. The content of this article is not to be taken as legal advice.