By Anthony El Salim
The recent passing of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Respect at Work Act) amended our country’s sexual harassment framework. And because of this, businesses and their employees are now asking where the line is.
In this article, we focus on the definition of sexual harassment and share examples that make that line easier to draw.
In the eyes of the law, what exactly is the legal definition of sexual harassment?
The legal definition of sexual harassment, as stated by the Human Rights Commission, is: “an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances”. This can include behaviour such as:
- unwelcome touching;
- staring or leering;
- suggestive comments or jokes;
- sexually explicit pictures or posters;
- unwanted invitations to go out on dates;
- requests for sex;
- intrusive questions about a person’s private life or body;
- unnecessary familiarity, such as deliberately brushing up against a person;
- insults or taunts based on sex;
- sexually explicit physical contact; and
- sexually explicit emails or SMS text messages.
The Respect at Work Act has also been amended to prohibit where workplace environments are hostile and create a feeling of unwelcome or exclusion towards a person because of their sex or characteristics related to their sex. This can include conduct that isn’t necessarily sexual in nature but nevertheless creates the possibility for offensive, intimidating, or humiliating conduct to occur. The seriousness and repetition of the conduct, the role of the person, and their influence and authority will be among the relevant considerations.
It’s important to note that sexual harassment can also occur between employees outside the workplace and will still be the responsibility of the employer.
Definition in practice
Most of your employees might not be familiar with the definitions provided by the Human Rights Commission or relevant legislation, and this is where education takes a front seat. One of the bare minimum actions that businesses will need to take is to communicate the definition of sexual harassment, its unlawfulness, and the consequences of engaging in it. Information for potential victims, such as where they can seek support or make complaints, should also be clear.
Employees will push back as to where the line is for acceptable behaviour. When considering the examples above, it’s quite clear that in practice, behaviour that’s of a sexual nature shouldn’t be tolerated or practised by employees even where that behaviour may be tolerated outside of work. The same can be said of conduct that would offend, intimidate, or humiliate other employees that may not have the same effect on a group of friends. All employees have presented in a professional setting and should behave as such.
Now that the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 is law, all employers have a direct legal obligation to eliminate sexual harassment in the workplace. Taking active measures to stamp-out this behaviour is a must, and one of the ways you can do that is by implementing regular training and development for all workers.
To support our clients with their positive duty obligations, HR Assured has designed a comprehensive e-Learning course – it’s an effective way to protect your people from harm’s way and mitigate risks in your workplace. If you would like to learn more about our training course or you’re unsure whether behaviour constitutes sexual harassment, you can contact HR Assured’s Telephone Advisory Service.
Anthony El Salim is a Workplace Relations Advisor at HR Assured. He assists clients with a range of employment relations and compliance matters via the 24/7 Telephone Advisory Service. He is currently studying for a Juris Doctor degree.