Sexual Harassment
Under the Federal definition and all States (except Western Australia), sexual harassment is made up of two components. The first component is the type of behaviour that is unlawful, the second is what will happen to the person if they refuse to go along with the unlawful behaviour.
There are three types of unlawful behaviour:
- Unwelcome sexual advance
- Unwelcome request for sexual favours
- Unwelcome conduct of a sexual nature
The behaviour covers oral or written statements and would include images, physical gestures, sexually explicit material via email, on a person’s computer screen, sexual jokes and banter, and touching. It has been held that it is no excuse to a sexual harassment claim that sexual conversations and banter were part of the work culture.
The second part of the definition provides that the unwelcome sexual behaviour must occur “in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.”
- Where a person was asked for sexual favours and subjected to physical contact and subsequently sexual assaulted.
- During a business trip, the employer made sexually suggestive remarks, repeatedly suggested seeing a live sex show, and entered the person’s bedroom uninvited and in his underpants.
- An assistant in a butcher’s shop was asked “how’s your love life?” and made negative comments about her boyfriend and his sexual prowess.
If a person thinks they are a victim of sexual harassment, they can check if their organisation has a policy about discrimination and if it contains a definition similar to the one mentioned above. If it does, they can use this policy to have a conversation with their manager/HR or a person in authority. Explain what has happened and why they think this is discrimination. It is useful to work out what they want the manager/HR to do about it the issue and to ask for it to be done.
They could ask the manager/HR to chat to the other person to clarify their point of view and explore the possibility of a combined discussion. Sometimes people may not be aware that they are doing something unlawful so giving them a chance to understand/explain their point of view is important. They could also ask the organisation to provide education to staff about discrimination, put posters up, or send out emails reminding people of what is appropriate/inappropriate behaviour.
If the behaviour is very serious (because it has been going on for a while, or is being done by someone in authority, or the incident is serious), then they might want to ask the organisation to investigate it formally. They should check if the organisation has a grievance management document. If so, it should explain when a matter will be investigated formally and what will be done. A formal investigation usually has to be in writing and should explain what has happened by who, when and where. It is important to stick to the facts and avoid emotional language when making a formal complaint.
Once the complaint is formal, the organisation should investigate it. They will interview the complainant (person making the complaint) and any relevant people to support their story. They will also interview the respondent (person responding to the complaint) and any relevant people. The organisation will then use all the facts to make a decision, usually by the CEO or equivalent.
If someone does not want to make a complaint internally or of the complaint is not managed to their satisfaction, they can contact the Equal Opportunity Commission in their State. Each Commission offers a free conciliation service for victims of sexual harassment. Most matters are sorted out at this stage.
EEO Specialists do not represent individuals making complaints, but we hope this information is useful to address such issues.
We do provide comprehensive training for organisations, to educate staff about sexual harassment, bullying and discrimination. We also train managers on how to identify and manage complaints. If you would like more details, please call Franca Sala Tenna on 0405 134 187.
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