Sexual harassment in the workplace

Workplace sexual harassment is an issue that affects everyone, with 1 in 3 people having experienced it directly. According to the findings of Respect@Work, the Australian Human Rights Commission (AHRC), the majority of workers choose not to report it, as some believe it could be seen as an overreaction, while others feel it is simply easier to keep quiet.

However, managers and supervisors have a critical role to play in preventing sexual harassment. After all, a safe and respectful working environment starts with strong leaders that understand their duties and ensure their workers are supported, protected and understand their reporting options through education and training.

Outside of the obvious negative impacts on the individual themselves, there are many negative impacts that sexual harassment can have on a workplace. There is, of course, the financial cost, with workplace sexual harassment costing the Australian economy an estimated $3.8 billion in 2018.

But research also show that sexual harassment victims are more likely to suffer symptoms of depression, poor sleep, and feelings of anxiety. This can result in higher staff turnover and poorer performance. And when cases go public, the damage to your business reputation can be significant.

The key to preventing these issues lies in understanding sexual harassment in the workplace and managing it responsibly—ideally before it happens.

What is sexual harassment in the workplace?

Under The Sex Discrimination Act 1984, sexual harassment is defined as unwelcome sexual advance, an unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature that would offend, humiliate or intimidate someone.

Examples of sexual harassment at work can include:

• Inappropriate physical contact

• Intrusive questions about a person’s private life or physical appearance

• Sharing or threatening to share intimate images or film without consent

• Unwelcome touching, hugging, cornering or kissing

• Repeated or inappropriate invitations to go out on dates

• Sexually suggestive comments or jokes that offend or intimidate

• Requests or pressure for sex or other sexual acts

• Sexually explicit pictures, posters or gifts

• Actual or attempted rape or sexual assault

• Being followed, watched or someone loitering (hanging around)

• Sexually explicit comments made in person or in writing, or indecent messages (SMS, social media), phone calls or emails – including the use of emojis with sexual connotations

• Sexual gestures, indecent exposure or inappropriate display of the body

• Unwelcome conduct of a sexual nature that occurs online or via some form of technology – including in virtual meetings

• Inappropriate staring or leering

• Repeated or inappropriate advances on email or other online social technologies  

Sexual harassment can occur in number of ways. Either as a single incident or occurrence or following a pattern of behaviour.

Sexual harassment 'in connection with work'

The Fair Work Act 2009 applies to sexual harassment ‘in connection with work’. 

For example, it applies where a worker is sexually harassed, when they are working, by:

• another worker

• a customer or client of the person’s employer or principal, a supplier of the employer or business, or

• a visitor to the workplace.

This can occur both during work hours and outside of work hours.

During work hours:

• Your usual workplace – e.g. office, site and often in an isolated workspace

• Site visits

• External meetings or conferences

• Training, courses or workshops

• Social gatherings – e.g. birthday lunches or team celebrations

• Client or customer workplaces or homes

Outside of work hours at:

• Work-related events or trips – e.g. corporate functions, weekend trips, workshops or training courses

• Work related social activities – e.g. Christmas parties, office celebrations, client events or functions

• External meetings or site visits

• Client or customer workplaces or homes

Employers’ legal responsibilities on sexual harassment

As an employer, you have a duty to prevent sexual harassment under Sex Discrimination laws. Under this duty, you and your business must take reasonable and proportional steps to eliminate discrimination in the workplace, including:

• Sex discrimination

• Sexual harassment

• Sex-based harassment

• Conduct that amounts to subjecting a person to a hostile work environment on the grounds of sex.

You and your business could be liable for conduct involving sexual harassment if you have not taken enough steps to prevent this from happening and/or do not respond appropriately when you become aware of the conduct.

If you do not take all necessary steps to prevent bullying and sexual harassment in the workplace, your business may also be breaching Work Health and Safety (WHS) laws.

For more information, see Understand your work health and safety responsibilities on the NSW Government website.

Prevention of sexual harassment at work

An effective preventative measure is to create a harassment policy, which is coordinated with your grievance and disciplinary procedures.

 Your policy might include:

• A clear statement that sexual harassment at work will not be tolerated and will lead to disciplinary action

• Examples of what constitutes sexual harassment

• The legal implications, including costs that can arise from personal liability

• How employees can make a complaint, and the process that will follow

• A commitment to responding to complaints quickly, confidentially, fairly and with a full investigation

To ensure the policy is effective, you can make sure it is understood by all staff through induction and training for all employees. You might also require managers to implement the policy and understand their important role in addressing all forms of workplace harassment.

Procedures to deal with sexual harassment complaints

All sexual harassment complaints should be dealt with promptly and thoroughly following the correct sexual harassment procedures. Through early intervention and mediation, you may be able to resolve problems before they become too serious.

Employees should feel able to make their complaint to any manager in case the perpetrator is their own line manager.

Formal procedure

A formal procedure should be triggered when informal measures don’t work or if the allegation warrants an immediate formal route. This procedure should fit with your organisation’s harassment and grievance procedures and should be kept confidential to prevent victimisation.

Investigating a claim of sexual harassment

Formal sexual harassment complaints need to be thoroughly investigated. Gathering all the evidence from both parties as well as any third parties who may be able to provide more information. If you have a policy for sexual harassment in place, you should follow this throughout your investigation. As with any workplace investigation, your own personal views or feelings should not influence the way you deal with a claim of sexual harassment.

Taking disciplinary action

When a complaint is upheld, you should act in line with your organisation’s disciplinary procedure. Disciplinary action for sexual harassment within the workplace can include suspension or termination.

Disciplinary action should be recorded and documented. The best place for this would be our cloud-based HR document storage for unlimited document storage of all important and relevant HR documents. Helping you to keep all important HR documents in one, easy-to-access location. Therefore, both you and the employee can view these documents at any time.

To educate yourself further on workplace sexual harassment, you can complete the Fair Work Commission’s free workplace sexual harassment online course here.

Get support from BrightHR to prevent sexual harassment in your workplace

To prevent sexual harassment from occurring within your workplace, get the guidance and HR advice you need from our employment relations specialists. Contact the BrightHR team today for more information or book a demo of our award-winning HR software.