What is sexual harassment?

In 2008 the Commonwealth Sex Discrimination Commissioner published a document called Effectively Preventing and Responding to Sexual Harassment: A Code of Practice for Employers which sets out a range of activities which could constitute sexual harassment. These include:

• unwelcome touching, hugging or kissing
• staring or leering
• suggestive comments or jokes
• sexually explicit pictures, screen savers or posters
• unwanted invitations to go out on dates or requests for sex
• intrusive questions about an employee’s private life or body
• unnecessary familiarity, such as deliberately brushing up against someone
• insults or taunts of a sexual nature
• sexually explicit emails or SMS messages
• accessing sexually explicit internet sites
• behaviour which would also be an offence under the criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.

It may take place in the workplace. It may occur off-site or by the use of social media.

Sexual harassment is not sexual interaction, flirtation, attraction or friendship which is invited, mutual, consensual or reciprocated. It may occur after a consensual relationship is finished.

What is the effect of sexual harassment?

A recent report by the Australian Human Rights Commission identifies that sexual harassment can impact negatively on mental health, self-esteem and confidence and on the victim’s employment prospects.

Legal obligations

Sexual harassment is unlawful if it takes place in certain situations, such as in workplaces and educational institutions. Employers can be made liable for the unlawful actions of an employee. Courts and tribunals have made substantial awards of damages to victims.

Sexual harassment, like bullying, may also constitute a breach of Workplace Health and Safety legislation. The legislation provides significant penalties for breaches. A breach may also lead to costly common law proceedings.