What is sexual harassment?

Sexual harassment in a workplace is:

• unacceptable
• unlawful
• a form of sex discrimination.

Sexual harassment means unwelcome sexual behaviour, or unwelcome conduct of a sexual nature, which could be expected to make a person feel offended, humiliated or intimidated.  The intent of the person who engages in the sexual harassment does not matter.

‘Conduct of a sexual nature’ includes subjecting a person to any act of physical intimacy, making verbal or written statements of a sexual nature to a person or about a person in their presence, or making any gesture, action or comment of a sexual nature in a person’s presence.

Sexual harassment may occur in a single incident or a series of incidents.  It can be physical, verbal or written.

Sexual harassment may be subtle, rather than explicit or obvious.  It frequently, but not always, involves an abuse of power and/or trust and is often directed at a person who may not be able to stop the behaviour easily.  The behaviour may occur either at a work location, or outside the workplace if it occurs in connection with work (e.g. at workplace-related functions, during travel that is connected with work).  The gender of the two parties is not relevant.

Sexual harassment does not include consensual conduct occurring within a personal relationship of mutual attraction and/or friendship based upon the choice and consent of both parties.

Sexual harassment is unlawful in accordance with the laws mentioned below.

Examples of sexual harassment

The following are examples of sexual harassment:

• unwelcome physical contact (e.g. touching, patting, pinching or brushing against a person)
• leering, patting, touching or unnecessary familiarity
• sexually suggestive, offensive or demeaning comments, emails, jokes or innuendo
• unwanted sexual propositions or advances or demands for sexual favours
• sending emails, text messages or mail that may be sexually explicit and offensive to any gender
• offensive telephone calls
• offensive gestures, staring or displaying offensive material
• unwelcome or uncalled for remarks, questions or insinuations about a person’s sexual activities or private life
• suggestive comments about a person’s appearance or body
• indecent exposure
• unwelcome remark or statement with sexual connotations to another person or about another person in that person’s presence.

An employer may be liable for sexual harassment engaged in by its workers.  This is known as “vicarious liability”, and it means that if a worker engages in sexual harassment at, or in connection with, a workplace, the person affected by the harassment can make a claim against either the worker, the employer, or both.

Your employer also has an obligation under work health and safety laws to provide you with a safe workplace.  Employees also have obligations to ensure that their conduct does not endanger the health of other people.  If you are experiencing sexual harassment in your workplace, that may create a risk to your health and well being, contravening work health and safety laws.

More resources

If you have been sexually harassed at work, our resources can help you understand your options.

Tribunals and Commissions with which you can lodge a sexual harassment claim:

• Australian Human Rights Commission
• ACT Human Rights Commission
• Anti-Discrimination Board New South Wales
• Anti-Discrimination Commission Northern Territory
• Anti-Discrimination Commission Queensland
• Equal Opportunity Commission South Australia
• Equal Opportunity Tasmania
• Equal Opportunity Commission Western Australia
• Victorian Equal Opportunity and Human Rights Commission

Other places where you can report sexual harassment:

• Police
  •  If immediately unsafe, call 000
  •  If no immediate danger but police assistance is required, call 131 444
• Safe Work Australia

The laws:

Sexual harassment is unlawful in accordance with the following laws:

• Sex Discrimination Act 1984 (CTH)
• Equal Opportunity Act 2010 (VIC)
• Anti-Discrimination Act 1977 (NSW)
• Anti-Discrimination Act 1991 (QLD)
• Anti-Discrimination Act 1998 (TAS)
• Equal Opportunity Act 1984 (SA)
• Anti-Discrimination Act 1996 (NT)
• Discrimination Act 1991 (ACT)
• Equal Opportunity Act 1984 (WA)

The contents of this page has been prepared with pro bono assistance from Russell Kennedy Lawyers.