Sexual Harassment
(A Code in Practice)
2. When is sexual harassment prohibited?
2.1 General principles
The Sex Discrimination Act prohibits sexual harassment in employment. This will include recruitment and selection processes as well as harassment occurring in the course of employment. For example, sexual harassment is prohibited at the workplace, during working hours, at work-related activities such as training courses, conferences, field trips, work functions and office Christmas parties.
Sexual harassment is prohibited within most employment relationships involving employers, employees, commission agents, contract workers and partners. Table 2.1 sets out who is covered by federal sexual harassment legislation.
Sexual harassment is also unlawful by:
- members of bodies or authorities responsible for occupational qualifications who sexually harass a person seeking a qualification;
- members or staff of registered organisations such as unions who sexually harass a member of the organisation;
- staff and students of educational institutions;
- a person providing goods, services and accommodation;
- a person disposing of or acquiring land;
- a member of a committee of management of a club; and
- a person administering Commonwealth laws and programs.
2.2 Explanatory notes
Sexual harassment is prohibited in most workplace situations and relationships. The key to understanding who is covered by federal sexual harassment legislation is the relationship between the harasser and the harassed. The table below shows which relationships are covered by the Sex Discrimination Act.
Note that sexual harassment does not necessarily have to take place in the workplace to be unlawful. Sexual harassment in employment may also take place in locations associated with work, such as conferences and training centres, restaurants for work lunches, hotels for work trips or office parties.
Table 2.1: When sexual harassment is prohibited
Workplace participant |
Responsibility to employees |
Responsibility to workplace
participants |
Responsibility to clients
and customers |
Responsibility in administering
Commonwealth laws and programs |
| Employers must not sexually harass | A current or prospective
employee; a current or prospective contract worker or commission
agent |
A workplace participant
carrying out duties in the same workplace as the employer |
A client, customer or
any other person in the course of providing goods, services and
facilities |
A person in the course
of performing any function, exercising any power or carrying out
any responsibility in the administration of a Commonwealth law or
program |
| Employees must not sexually harass | A co-worker or prospective
co-worker |
A workplace participant
carrying out duties in the same workplace as the employee |
A client, customer or
any other person in the course of providing goods, services and
facilities |
A person in the course
of performing any function, exercising any power or carrying out
any responsibility in the administration of a Commonwealth law or
program |
| Contract workers/ commission agents must not sexually harass | A fellow contract worker
or commission agent |
A workplace participant
carrying out duties in the same workplace as the contract worker
or commission agent |
A client, customer or
any other person in the course of providing goods, services and
facilities |
A person in the course
of performing any function, exercising any power or carrying out
any responsibility in the administration of a Commonwealth law or
program |
| Partners must not sexually harass | A co-partner or prospective
partner |
A workplace participant
carrying out duties in the same workplace as the partner |
A client, customer or
any other person in the course of providing goods, services and
facilities |
A person in the course
of performing any function, exercising any power or carrying out
any responsibility in the administration of a Commonwealth law or
program |
| Union employees must not sexually harass | A co-worker or prospective
co-worker |
A workplace participant
carrying out duties in the same workplace as the union employee |
A union member or a person
seeking to become a union member; A client, customer or any other
person in the course of providing goods, services and facilities |
A person in the course
of performing any function, exercising any power or carrying out
any responsibility in the administration of a Commonwealth law or
program |
| Union members must not sexually harass | A fellow union member
or a person seeking to become a union member |
|||
| Employment agency operators and staff must not sexually harass | A client, customer or
any other person in the course of providing goods, services and
facilities |
A person in the course
of performing any function, exercising any power or carrying out
any responsibility in the administration of a Commonwealth law or
program |
In addition, each of these workplace participants is also covered by the general prohibitions in the Sex Discrimination Act against victimising complainants or causing or permitting sex discrimination, including sexual harassment. This is discussed below at 3.2.3 and 3.2.2.
| Workplace example: Sexual harassment by customers or clients |
Some employees or contractors, such as those working in the entertainment or hospitality industries, are vulnerable to sexual harassment by customers or clients. The sexual harassment provisions of the Sex Discrimination Act do not cover employees or contract workers if they are sexually harassed by customers or clients. However, depending on the circumstances, an employer may be found liable for sex discrimination if they treated an employee or contract worker less favourably than they would have treated someone of the opposite sex by failing to protect them from harassment. For example, in the case of Smith v Sandalwood Motel (1994) EOC 92-577 a motel owner was found to have discriminated against two women he engaged to perform as singers in his motel. The Western Australian Equal Opportunity Tribunal found that the motel owner did nothing to prevent the women being subjected to sexualised and offensive behaviour by bar patrons "in an atmosphere close to violence." The Tribunal found that the motel owner's neglect meant that the women were subjected to less favourable treatment than a male contractor would have received. In order to protect themselves from liability employers should avoid putting employees in situations where they may be vulnerable to harassment: for example, not requiring women to wear sexy clothing to promote products or expecting them to behave flirtatiously with clients. When they see clients or customers harassing staff, employers should take steps to stop the behaviour. |
| Workplace example: Social functions and alcohol |
Sexual harassment between employees is unlawful at social functions that are connected to work. The fact that the work party takes place at a venue outside of the workplace or even outside of working hours will not affect employees' liability for their actions. Employers will also remain vicariously liable for the behaviour of their staff at work social functions, unless they took all reasonable steps to prevent sexual harassment occurring. When drinking, people will often act in ways they otherwise would not. Sometimes people view drinking and socialising as an opportunity to behave towards co-workers in a sexual or offensive way. In order to protect themselves from vicarious liability for sexual harassment, employers may want to remind their employees that:
Employers should also remind managers to model appropriate behaviour and be mindful that alcohol is served in a responsible way.
Last updated: 24 March 2004. |
