A lot of business owners, employees and the public are understandably concerned about the prevalence of sexual harassment in society and what measures workplaces are taking to prevent it from occurring and deal with complaints when they arise.
Part of the problem is identifying the kind of behaviours that can constitute “sexual harassment” in the workplace. Conduct that might once have been considered acceptable or common practice in the workplace, may now be perceived as unacceptable behaviour.
The Sex Discrimination Act 1984 (Cth), section 28A provides:
(1) [A] person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
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.
Section 387 of the Fair Work Act 2009 (Cth) also provides that sexual harassment is misconduct for the purpose of considering whether there has been a valid reason for dismissing an employee, as well as whether the Fair Work Commission can make an order preventing workplace sexual harassment.
In Council of the New South Wales Bar Association v Raphael [2021] NSWCATOD 44 the Court found that a senior barrister had sexually harassed a female solicitor by making an unwelcome joke about the solicitor’s husband getting jealous, as “[they] are spending so much time together” upon entering a private conference room. In giving the judgement, the Court quoted an earlier case of O’Callaghan v Loder [1983] 3 NSWLR 89 and said:
“The sexual conduct of the employer can vary, on the one hand, from attempts at sexual intercourse or some other overt sexual connection, through the whole range of sexual contact, including kissing, touching or pinching, and can include purely verbal approaches such as sexual propositions, or gender based insults or taunting.”
The second element of the test is an objective test of whether a reasonable person would consider the conduct likely to offend, intimidate or humiliate the person harassed. Crucially, it doesn’t matter whether the person making the comment or conduct intended it to be a harmless joke, or expected that the person harassed would see the humour in it; the only thing that matters is that there was an objective likelihood that the conduct would offend, humiliate or intimidate.
The question then becomes – what is acceptable in the workplace? An abundance of caution is the best way forward. Adequate training and a healthy workplace culture of respect also feed into this. In general, any kind of humour that might be offensive or sexual should be avoided, even if you think that the person hearing the joke might find it funny and not offensive.
Employers have an obligation to maintain a safe working environment for their employees, and that includes one that is free from sexual harassment. It is a sad truth that this issue continues to arise, frequently because people are careless about the kinds of comments they make, but also in relation to their actions. A friendly hug, if unwelcome, might constitute sexual harassment, as equally would a lewd comment.
Employers should be making sure their staff understand and are aware of appropriate behaviours. Better yet, employers should implement a policy and training as necessary to ensure that they are protecting themselves, as well as their employees, from inappropriate behaviour. Implementing proper complaints handling procedures will also provide employees with comfort to know that there are actions they can take if they do experience sexual harassment in the workplace. This will in turn, result in creating a culture within the workplace which does not tolerate sexual harassment and helps the employees to feel safe.
If your workplace requires assistance with preparing and implementing suitable policies and procedures to manage sexual harassment in the workplace, contact our Workplace Law team for further assistance.
