Sexual harassment: employers’, managers’ and employees’ responsibilities

Comcare, the national work health and safety, and workers’ compensation authority, has published several resources to help employers and employees prevent and respond to workplace sexual harassment.

Material on sexual harassment is also available from Safe Work Australia’s website.

Comcare points out that:

“Sexual harassment is a known workplace hazard that can cause psychological and physical harm. It is unlawful under the Commonwealth Sex Discrimination Act 1984 and is also prohibited by state and territory anti-discrimination laws.”

And that:

“There are a number of pieces of legislation that apply to sexual harassment including work health and safety laws, discrimination and equal opportunity laws, workplace relations laws, workers’ compensation laws and criminal laws at Commonwealth, state, and territory levels.”

Job applicants need to understand their obligations under this legislation, particularly if applying for manager or supervisory roles. Where jobs involve workplace risks and fostering a positive, productive workplace culture, understanding what sexual harassment is, how to set standards, how to prevent it and respond to complaints is essential know-how.

Applicants could be asked questions about their knowledge and understanding of concepts and legislation, as well as their experience in building a positive working environment, responding to complaints, identifying workplace risks. Questions could also be framed as ‘how would you’ situations, such as ‘how would you assess workplace risks’ or ‘how would you respond if a staff member came to you with a complaint’.

Here is a summary of key points made in Comcare’s resources.

What is sexual harassment?

“Sexual harassment is defined in the Sex Discrimination Act 1984 (Cth) as being any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.”

Sexual harassment is a known cause of physical and psychological harm in the workplace.

Comcare’s regulatory guidance says:

“Sexual harassment can take various forms. It can include unwelcome hugging, kissing or other types of inappropriate physical contact, staring or leering, intrusive questions about a person’s private life or physical appearance, repeated unwanted invitations to go out on dates, requests for sex, or sexually explicit emails, calls, text messages or online interactions.

Such behaviour does not have to be directed at a specific person. Sexual harassment includes behaviour that makes the working environment uncomfortable or threatening in a sexually hostile way, such as displaying sexually offensive pictures or a culture of suggestive comments or jokes.

Sexual harassment can happen during working hours and at work-related activities such as training courses, conferences, trips, and work-related social activities. It might come from workers, a supervisor or manager, or from customers or clients.”

How widespread is sexual harassment?

Comcare points out that:

“One in three workers experienced sexual harassment at work in the past five years. The majority of workers chose not to report it, as some believed it would be seen as an overreaction, while others felt it was easier to keep quiet. These are findings from Respect@Work, the Australian Human Rights Commission’s (AHRC) national inquiry into workplace sexual harassment.

In every industry and at every level, workplace sexual harassment is unlawful and harmful to workers, particularly when reporting is poorly handled. It is often an abuse of power and enabled by systemic risk factors including low diversity, isolated or remote work and poor workplace culture.”

Who is most at risk of sexual harassment?

Comcare says: “All workers are at risk of workplace sexual harassment, however the following groups have been found to be at greater risk:

  • Women (experience higher rates of workplace sexual harassment than men)
  • Young workers aged less than 30 years
  • Lesbian, gay, bisexual, transgender, queer or intersex (LGBTQI) workers
  • Aboriginal or Torres Strait Islander workers
  • Workers with disability
  • Workers from culturally and linguistically diverse (CALD) backgrounds
  • Migrant workers or workers holding temporary visas
  • People in working arrangements described as ‘precarious’ or ‘insecure’.”
What should employers do?

Guidance for employers includes prevention, policy and reporting.

Prevention includes awareness of risk factors, assessment and management of risks, fostering a positive workplace culture supported by policies, HR practices, education and training, setting an example, providing information, training and education, and measuring effectiveness.

Setting a standard with policy includes defining with examples what sexual harassment is, being clear about WHS duties and responsibilities, adopting preventative measures, making clear what happens if workers breach the policy, and what workers should do if they experience or witness sexual harassment, how they can report it and the process from there, and what support is available.

Reporting covers what to do if a worker experiences or witnesses workplace sexual harassment, and includes privacy, confidentiality, communication, fairness, protection, support, referral, and reporting options.

What should managers and supervisors do?

Resources explain how to support prevention of sexual harassment and how to support workers who report sexual harassment.

Comcare’s regulatory guidance says:

If you feel anyone in your workplace is in immediate danger, call 000 and report the matter to Police. If anyone in your workplace would like to make a report with Police and is not in immediate danger, call 131 444.

What should workers do?

If you experience or witness workplace sexual harassment, you can seek support from your employer or report it – formally, informally, or anonymously. It is illegal to be disadvantaged because you make a report and if you choose not to report it, you should access support from someone at work, a trusted friend or a service such as: an Employee Assistance Program, 1800RESPECT 1800 737 732, Lifeline 13 11 14, Beyond Blue Support Service 1300 22 4636.

Other options on ways to respond include:

  • “If you feel safe and comfortable, you might choose to tell the other person that the behaviour is inappropriate and ask that it stop.
  • Seek support, including from other workers, organisational leaders, harassment officers, other people nearby or family and friends.
  • If you are able, remove yourself from the situation and ask the person to leave the work area.
  • Disconnect or disengage with the person if the harassment occurs on the phone or online.
  • If the behaviour involves violence, such as physical assault, alert your manager or a trusted co-worker immediately.
  • If you are not ready to make a formal complaint, keep a record of what happens, when and where, who was involved and anything else you think is important to ensure its documented.
  • At any time, you can contact your WHS regulator for further advice or lodge a complaint with the AHRC or your state or territory anti-discrimination agency.”

Guidance is also provided on what to do if you witness sexual harassment. Actions will depend on the situation and the people involved. Keep in mind the focus should always be on your safety and the safety of the person who is being harassed. Options include:

  • “If you feel safe and comfortable, tell the other person that you object to their behaviour and ask that it stop.
  • Talk to the person experiencing harassment. Ask what you can do and what support they need.
  • Help the person decide a course of action to help ensure the harassment stops.
  • If you have permission from the person experiencing harassment, you should report the incident to your employer.
  • Talk to your employer or your representatives about a sexual harassment policy, training, and other prevention activities in your workplace.”

If you are accused of sexual harassment, resources advise “you should always take any accusation seriously. It is important to be open to feedback from others, and if necessary, be prepared to change your behaviour. Your employer must have workplace health and safety policies and procedures on incident reporting and management processes that maintain confidentiality and privacy to protect all parties from victimisation, such as bullying, intimidation or retaliation.

If you experience, witness or are accused of sexual harassment, you may wish to seek advice and support from a trusted person, health and safety representative, or employee assistance program (EAP). You can also engage an external organisation such as counselling service, legal service, or trade union.”

Dr Ann Villiers, career coach, writer and author, is Australia’s only Mental Nutritionist specialising in mind and language practices that help people build flexible thinking, confident speaking and quality connections with people.