Respect at work: what constitutes sexual harassment?

As the festive season approaches, it’s crucial for businesses to ensure a safe working environment, free from sexual harassment, especially during work-related functions. Failing to meet this duty can pose significant risks to everyone involved.
 
Let’s reflect on the duty to prevent sexual harassment at work, which was enacted by the Federal Government in the Respect at Work amendments in December 2023.

What is sexual harassment?

Sexual harassment as defined by the Sex Discrimination Act 1984 (Cth) (the Act) includes conduct that constitutes:

• An unwelcome sexual advance;
• An unwelcome request for sexual favours; and
• Other unwelcome conduct of a sexual nature.

'Conduct of a sexual nature' covers a broad range of conduct at work including (without limitation):

• Oral and written statements;
• Inappropriate personal comments about appearance;
• Comments or questions about personal relationships;
• Declarations of love;
• Requests for physical contact, including requests for a hug;
• Physical contact or touching; and
• ​Sexual assault.

The conduct must be ‘unwelcome’ to be unlawful under the Act. Whether the conduct is unwelcome is a subjective test, and turns on the perspective of the person harassed.
 
The conduct must be of a nature that a “reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.”
 
In addition to sexual harassment, it is also unlawful under the Act for workers to be subjected to harassment on the ground of sex, being harassment because of their sex, or characteristics that pertain or are imputed to their sex.

Sexual harassment at work can also constitute discrimination under the Act.
 
The Act provides that it is unlawful to discriminate against employees and contract workers on the basis of sex, characteristics that pertain or are imputed to sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding and family and caring responsibilities.

Positive duty

The Respect at Work legislation implemented a positive duty on employers and persons conducting a business or undertaking (duty holders) to prevent unlawful sexual harassment and discrimination at work.
 
For the avoidance of doubt, the positive duty applies to all practices and companies, whether they engage employees or independent contractors. 
 
Pursuant to the new provisions, duty holders must take reasonable and proportionate measures to eliminate, as far as possible, unlawful conduct including:

• Sexual harassment;
• Harassment on the ground of sex;
• Discrimination on the ground of sex;
• Conduct that subjects a person to a hostile workplace environment (meaning an environment that is offensive, intimidating or humiliating), by reason of their sex;
• ​Victimisation, including in relation to complaints about unlawful conduct listed above.

The Australian Human Rights Commission (AHRC) has published guidelines for complying with the positive duty, which are available here.

What are some of the risks arising from sexual harassment in the workplace?

A person harassed can be significantly impacted by sexual harassment, including psychological and other injury, loss of capacity to work, and economic loss.
 
Accordingly, such conduct can give rise to substantial legal claims for loss and damage.
 
The business can be liable for the claim arising from sexual harassment. Claims can be brought against:

• The company (where the perpetrator is an employee or agent); and/or
• A person involved in the conduct, meaning a person who causes, instructs, induces, aids or permits another person to do an act that is unlawful; and/or
• The individual perpetrator.

 An employee or contractor who engages in sexual harassment is likely to face dismissal on the basis of serious misconduct, or have their services immediately terminated.
 
Further, an employee or contractor can be the subject of a claim for damages under the Act as set out above.
 
Medical practitioners face the further risk that sexual harassment at work can impact their registration and practice. Pursuant to section 5.4 of Good medical practice: a code of conduct for doctors in Australia, concerns about sexual harassment can be referred to the Medical Board for regulatory action.

What are some practical steps towards safe celebrations?

• Check that your policies comply with the AHRC Guidelines, including specific policies on sexual harassment.
• Check that your workplace training and education is up-to-date and provide workers with a refresher if necessary.
• Circulate an email reminding staff of their obligations.
• Set boundaries by limiting work functions to a set time and place (but remember that conduct that occurs after the function can be characterised as work-related in some circumstances).
• If alcohol is available, ensure safe service (and make sure there is enough food!).
• Make arrangements for safe transport home for your staff where necessary.

 If you need any further guidance, we encourage you to contact MIGA’s Claims and Legal Services team for assistance on 1800 777 156.
 

Resources

1. Fact Sheet: Respect@Work – Changes to the Sex Discrimination Act 1984 and the Australian Human Rights Commission Act (December 2022)
2. Respect@Work website
3. Champions of Change publication on Sexual Harassment: Practical resources and tools (including sample policy)