What is sexual harassment?
Last updated 28 August 2019
Last updated 28 August 2019
Sexual harassment in a workplace is:
unacceptable
unlawful
a form of sex discrimination.
Sexual harassment means unwelcome sexual behaviour, or unwelcome conduct of a sexual nature, which could be expected to make a person feel offended, humiliated or intimidated. The intent of the person who engages in the sexual harassment does not matter.
‘Conduct of a sexual nature’ includes subjecting a person to any act of physical intimacy, making verbal or written statements of a sexual nature to a person or about a person in their presence, or making any gesture, action or comment of a sexual nature in a person’s presence.
Sexual harassment may occur in a single incident or a series of incidents. It can be physical, verbal or written.
Sexual harassment may be subtle, rather than explicit or obvious. It frequently, but not always, involves an abuse of power and/or trust and is often directed at a person who may not be able to stop the behaviour easily. The behaviour may occur either at a work location, or outside the workplace if it occurs in connection with work (e.g. at workplace-related functions, during travel that is connected with work). The gender of the two parties is not relevant.
Sexual harassment does not include consensual conduct occurring within a personal relationship of mutual attraction and/or friendship based upon the choice and consent of both parties.
Sexual harassment is unlawful in accordance with the laws mentioned below.
The following are examples of sexual harassment:
unwelcome physical contact (e.g. touching, patting, pinching or brushing against a person)
leering, patting, touching or unnecessary familiarity
sexually suggestive, offensive or demeaning comments, emails, jokes or innuendo
unwanted sexual propositions or advances or demands for sexual favours
sending emails, text messages or mail that may be sexually explicit and offensive to any gender
offensive telephone calls
offensive gestures, staring or displaying offensive material
unwelcome or uncalled for remarks, questions or insinuations about a person’s sexual activities or private life
suggestive comments about a person’s appearance or body
indecent exposure
unwelcome remark or statement with sexual connotations to another person or about another person in that person’s presence.
An employer may be liable for sexual harassment engaged in by its workers. This is known as “vicarious liability”, and it means that if a worker engages in sexual harassment at, or in connection with, a workplace, the person affected by the harassment can make a claim against either the worker, the employer, or both.
Your employer also has an obligation under work health and safety laws to provide you with a safe workplace. Employees also have obligations to ensure that their conduct does not endanger the health of other people. If you are experiencing sexual harassment in your workplace, that may create a risk to your health and well being, contravening work health and safety laws.
If you have been sexually harassed at work, our resources can help you understand your options.
Police
Sexual harassment is unlawful in accordance with the following laws:
Sex Discrimination Act 1984 (CTH)
Equal Opportunity Act 2010 (VIC)
Anti-Discrimination Act 1977 (NSW)
Anti-Discrimination Act 1991 (QLD)
Anti-Discrimination Act 1998 (TAS)
Equal Opportunity Act 1984 (SA)
Anti-Discrimination Act 1996 (NT)
Discrimination Act 1991 (ACT)
Equal Opportunity Act 1984 (WA)
The contents of this page has been prepared with pro bono assistance from Russell Kennedy Lawyers.
Please note that Justice Connect Answers can only help with quick legal questions, and does not qualify as an application for comprehensive legal help. If you need ongoing legal help with your problem, the best thing to do is submit an online application.
As a member of the Power to Prevent Coalition, we strongly support the recommendations of Respect@Work, the Sex Discrimination Commissioner’s report into sexual harassment at work. We urge the Australian Government to make crucial changes to make Australian workplaces safer, healthier and more respectful for all.
This resource was last updated on 28 August 2019. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.