What exactly constitutes sexual harassment? What about jokes?
What should I do if I've been harassed?
What can I do if I see sexual harassment happening in my workplace?
What can employers do to prevent sexual harassment from happening?
What is sexual harassment?
Under the Equal Opportunity Act 2010, sexual harassment is defined as:
- an unwelcome sexual advance
- an unwelcome request for sexual favours
- any other unwelcome conduct of a sexual nature
which would lead a reasonable person to experience offence, humiliation or intimidation. It can be physical, verbal, or written.
Men experience sexual harassment but it disproportionately affects women, especially in the workplace. (The Australian Human Rights Commission reported that 1 in 5 women experience sexual harassment in the workplace at some time.)
Sexual harassment can be a barrier to women participating fully in paid work. It can undermine their equal participation in organisations or business, reduce the quality of their working life and impose costs on organisations.*
Volunteers and unpaid workers also have the same rights and responsibilities in relation to sexual harassment as paid staff.See Fredman, S. Women and the law (Oxford University Press, New York. 1997) and McCann, D. Sexual harassment at work: National and international responses. (Switzerland: International Labour Office: Geneva, 2005).
What are some examples of behaviour that might constitute sexual harassment?
Both men and women can be unsure if certain behaviour is sexual harassment or not. There is sometimes a belief that if it is not physical it is not real.
If the workplace culture permits behaviours that in the "real" world would not be OK, it is a challenge to get people to understand that it is not OK to treat people that way.
Sexual harassment can include:
- touching, teasing, jokes
- unwelcome comments or speculation from others about your sexual orientation
- wanting too much information from you about your personal life.
The digital age has brought new avenues for harassment, such as taking and sending inappropriate pictures, sending inappropriate text messages, and inappropriate behaviour on social media.
Basic rule: If you think it's sexual harassment, it probably is.
It doesn't count if it only happens once, right?
Unfortunately, common misconceptions persist.
Jeff Kennett recently suggested defining sexual harassment as repeated approaches after having been rebuffed once. That is not the way sexual harassment works under the law. Under the Equal Opportunity Act, there is no specification about whether it is a first time or repeat offence.
For example, making an inappropriate pass at someone during a business meeting, even if it is the first time, may qualify as sexual harassment.
What about jokes?
Perpetrators of sexual harassment sometimes claim they were only joking but even if someone thinks they're just making a joke, it can still be insulting, threatening and unwelcome.
Jokes can be another way to reinforce a power imbalance.
It doesn't matter about your intent or motive, it's your behaviour that is subject to the law. If you're in doubt about the appropriateness of a joke, don't make it.
What can people do if they are being sexually harassed?
The first thing that you should do is tell someone you trust, perhaps an HR person, a colleague or a family member. Ask them to support you in what you need to make the next step – whether that’s about helping you to make a formal complaint at work, seeking a counsellor, or coming to talk to us at the Commission.
If this doesn’t work, or if the person continues to sexually harass you, get advice from your manager, HR or the Commission about making a complaint to us.
The Commission helps people to resolve complaints of sexual harassment by providing a free, impartial conciliation service.
At conciliation both people sit down and negotiate an agreed outcome – this might be an apology, equal opportunity training in the workplace, or a financial settlement.
You can also seek counselling or support from 1800 RESPECT (1800 737 732).
What can employers do to prevent sexual harassment?
Employers must now think big, be ambitious and redesign their workplaces with a focus on prevention. Employers have a legal obligation to provide a safe environment for their workers that is free from discrimination and sexual harassment.
First: Employers must establish effective reporting mechanisms.
- avenues within the workplace for staff to report harassment without consequence
- choice over how reports are dealt with, including conditions of anonymity
- alternatives to a formal complaint process – whereby the perpetrator could lose their job or face criminal sanctions – as high stakes can function as a barrier to reporting
- a timely, fair and confidential response system
- protecting complainants from further victimisation under the law. People should not be punished because they've made a complaint
- rebuilding trust in reporting mechanisms. We know that women don’t report because they don’t trust the system; they have seen complaints buried, complainants fired and known perpetrators promoted and celebrated
- taking the opportunity of #MeToo to take action. It might be an email from the CEO assuring staff that they can come forward without consequence; committing to find new channels to report behaviour; or ensuring staff are aware of external complaints options such as the Commission.
Second: Culture change.
- zero tolerance of harassment and sexist behaviour at every level in the organisation
- cutting practices that discriminate directly or indirectly against women, such as doing business on the golf course
- regular consultation, such as annual employee surveys to gather and understand perceptions about the workplace
- empowering staff to uphold standards and look out for each other.
Third: Create a diverse workforce. Workplaces with a high proportion of female staff have much lower levels of sexual harassment.
- offering incentives to hire, promote and develop female staff
- ensuring women are represented at all levels of responsibility and clearly visible in leadership positions
- adopting policies that support flexible and part-time work, as well as adequate family and carers' leave provisions, for both men and women.
What can bystanders do?
If you see something, say something. We all have a role to play in ensuring that our workplaces feel and are safe and welcoming for everyone.
Bystander action can make a real difference to the negative impact of sexist behaviour, and can empower the person targeted. Responding to a sexist joke by saying "that’s not OK" or "what do you mean by that" can have a huge effect.
If things in your workplace are making you uncomfortable, they are likely making other people uncomfortable too. Is there pornographic material on computer screens? Racist/homophobic/sexist jokes in the tea room? If it doesn’t feel right, please don’t think you’re alone and ignore it.
Ask whether your organisation has a policy or reporting mechanism. If you don’t feel able to report it by yourself, find an ally or two in your colleagues and go together.
What should I do if someone tells me they've been sexually harassed?
We know that people who have experienced harassment or assault in their workplaces are most likely to report their experiences to a friend or family member. If someone comes to you with a story, listen to them. Believe them. Take it seriously and don’t minimise it.
Ask if there is anything you can do to support them to make a complaint within the organisation. Or, let them know that they can come to the Commission to make a complaint if they feel their organisation will not take it seriously.
We all have a role to play in being supportive listeners and active allies to the people around us.
Why is sexual harassment still underreported?
When it comes down to it, often women don’t report because of a fear of the consequences and they don’t trust it will make any difference – reasons that are informed by reality.
Building trust that concerns and complaints will be acting upon and addressed is a far bigger project, and one that operates against the backdrop of decades of inaction and even retaliation for those who do manage to overcome the barriers to reporting.
It takes leadership, and for people at the top of organisations to start conversations, set the tone for what’s acceptable and what is not. It takes managers who have a pro-active approach rather than waiting for the problem to come to them – if someone is suddenly absent a lot or avoiding working with a particular colleague, ask why.
People still see it as dangerous to put their hand up and make allegations. Unless the workplace is actually using a policy and the systems and culture reinforce the stated aims to remove that kind of behaviour people will not feel safe.
Or there may be a policy in place, but an unspoken culture that normalises inappropriate behaviour. People may have seen nothing happen when other people have complained and reported this behaviour.
What is the Commission doing about sexual harassment?
The Commission provides a free and confidential complaint and enquiry service.
We offer our conciliation service that is designed to help parties resolve their dispute. It might involve a meeting of the parties where they sit down together in a neutral setting. An initial discussion can lead to a negotiated outcome – this might be an apology, equal opportunity training in the workplace, or a financial settlement.
The service has had a 40 per cent uptick since Harvey Weinstein but we would love more people to come to us.
The Commission's view is that there's no 'one size fits all' avenue of redress for people who have been sexually harassed.
The conciliation service offered by the Commission is an alternative to legal or court action that may be a first option for people and, in some cases, the only option to gain closure and resolution.
Key advantages of our service are:
- it's free, timely and confidential, and permits a person to freely express what occurred to them and the damage and hurt experienced
- there’s no mandatory time limit within which to made a complaint, unlike other jurisdictions.
- the Commission will not comment on complaints to the media and there is no list of current complaints or proceedings, until public court proceedings. This is important because sometimes high-stakes confrontations – like court, publicity or the possibility that someone will lose their job – actually function as a major barrier to making complaints. Our service offers a less confrontational option.
The Commission also conducts independent reviews of workplaces, such as Victoria Police and the fire services. Our review recommendations include preventative strategies such as establishing effective reporting mechanisms, changing "enabling culture" and creating a diverse and inclusive workforce.
We can help
You can also seek counselling or support from 1800 RESPECT (1800 737 732).