Sexual Harassment Fact Sheet

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WORKPLACE SEXUAL HARASSMENT

MANAGING RISKS


Preventing and Responding to Workplace Sexual Harassment Fact Sheet

The purpose of this document is to provide a guide to Members on how to ensure they meet their legislative obligations to prevent and minimise the risk of sexual harassment occurring in the workplace.

Sexual harassment is a workplace hazard that is known to cause psychological and physical harm, and may also be criminal in nature.

An employer may also be vicariously liable for any sexual harassment that occurs in the workplace.

This Guide is aimed at preventing sexual harassment between workers at all levels, as well as managing the risk of third-party sexual harassment from customers, clients and others.


Sexual Harassment and employer’s obligations

Sexual harassment is covered by WHS laws as it is a workplace hazard that creates physical and psychological risks to health and safety. An employer has an obligation to take all reasonable steps to prevent risks to health and safety in the workplace. This means you must do all that you reasonably can to manage the risk of sexual harassment occurring in the workplace.

Sexual harassment is also unlawful under the Sex Discrimination Act 1984 (Cth) and state and territory anti-discrimination laws.

An employer is obliged to take positive steps to prevent sexual harassment occurring in the workplace. An employer will be liable for sexual harassment that occurs in the workplace unless they can show that they have taken all reasonable steps to prevent sexual harassment taking place. This requires, at a minimum, that employers:

  • Implement appropriate sexual harassment policies and procedures (and train employees in their application); and
  • Ensure that there are appropriate procedures in place to ensure any complaint or grievance made alleging sexual harassment are dealt with efficiently and appropriately.


What is workplace sexual harassment?

Sexual harassment is any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, in circumstances where a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated.

Under WHS laws, a ‘workplace’ means a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. This means sexual harassment can happen:

  • at a worker’s usual workplace
  • where a worker is working remotely, including if the person’s workplace is their home
  • in a place where the worker is undertaking work at a different location (such as a client’s home)
  • where the worker is engaging in a work-related activity such as conferences, training, work trips, work-related corporate events or if you host a work-related social activity like a Christmas party, or
  • by phone, email or online (such as through social media platforms

Sexual harassment may be perpetrated by anyone, including an employer, supervisor, co-worker, client, patient or customer. It can also involve people who work for other businesses and share the same workplace, for example sub-contractors at the same work site, or a delivery person and retail workers.

Sexual harassment is not always obvious, repeated or continuous. It can be a one-off incident. Sexual harassment can also be a behaviour that while not directed at a particular person, affects someone who is exposed to it or witnesses it. Your workers may experience sexual harassment when they are not at work from risks which arise at the workplace. For example, if a worker receives offensive text messages after work from a colleague or client. You must take action to reduce these risks in the workplace.


What might sexual harassment look like?

  • Sexual harassment can be overt, covert or subtle and include: unwelcome touching, hugging, cornering or kissing
  • inappropriate staring or leering
  • suggestive comments or jokes
  • using suggestive or sexualised nicknames for co-workers
  • sexually explicit pictures, posters or gifts
  • circulating sexually explicit material
  • persistent unwanted invitations to go out on dates
  • requests or pressure for sex
  • intrusive questions or comments about a person's private life or body
  • unnecessary familiarity, such as deliberately brushing up against a person
  • insults or taunts based on sex
  • sexual gestures or indecent exposure
  • following, watching or loitering nearby another person
  • sexually explicit or indecent physical contact
  • sexually explicit or indecent emails, phone calls, text messages or online interactions
  • repeated or inappropriate advances online
  • threatening to share intimate images or film without consent
  • actual or attempted rape or sexual assault.

Acts such as indecent exposure, stalking, sexual assault and obscene or threatening communications (e.g., phone calls, letters, emails, text messages and posts on social media) may be offences under criminal law and should be referred to Police as well as managed under WHS laws.

Subtler forms like sexist remarks, crude language and an overall workplace culture that is degrading or intimidating may not be taken as seriously and can be more difficult to identify. However, these forms of sexual harassment can be just as harmful as overt forms of sexual harassment.


Impacts of sexual harassment

Sexual harassment can cause physical and psychological harm to the person it is directed at and anyone witnessing the behaviour. These impacts can have significant social and economic costs for workers, their family, their organisation and the wider community.

Sexual harassment can lead to:

  • feelings of isolation, social isolation or family dislocation
  • loss of confidence and withdrawal
  • physical injuries as a result of assault
  • stress, depression, anxiety and post-traumatic stress disorder (PTSD)
  • illness such as cardiovascular disease, musculoskeletal disorders, immune deficiency and gastrointestinal disorders e.g., as a result of stress
  • negative impacts on a person’s job or career, and suicidal thoughts


Identifying hazards and assessing risks

Sexual harassment is now recognised as a systemic risk, with industry, environmental and individual risk factors present in every workplace. To identify the potential for sexual harassment, you need to gather information about the hazards in your workplace and assess the associated risk. Factors that can increase the likelihood and risks of sexual harassment include:

  • low worker diversity e.g., the workforce is dominated by one gender, age group, race or culture
  • power imbalances e.g. workplaces where one gender holds most of the management and decision-making positions
  • workplaces organised according to a hierarchical structure e.g., Police and enforcement organisations, or medical and legal professions
  • a workplace culture that supports or tolerates sexual harassment, including where lower level (but still harmful) forms of harassment are accepted, e.g. small acts of disrespect and inequality are ignored, and reports of sexual harassment or inappropriate behaviours are not taken seriously − this conduct can escalate to other forms of harassment, aggression and violence
  • use of alcohol in a work context, and attendance at conferences and social events as part of work duties, including overnight travel
  • workers are isolated, in restrictive spaces like cars, working at residential premises, living in employer provided accommodation, working from remote locations with limited supervision, or have restricted access to help and support
  • working from home which may provide an opportunity for covert sexual harassment to occur online or through phone communication
  • worker interactions with clients, customers or members of the public (either face-to-face or online) which may give rise to third-party sexual harassment.

Drawing on the experience and knowledge of workers is more likely to result in the identification of all hazards and better risk management solutions.

MANAGING RISKS

The risk management process involves:

  • identifying the hazards
  • assessing the associated risks
  • implementing control measures to eliminate or minimise risks, and
  • regularly reviewing control measures to ensure they remain effective.

You must do these things in consultation with your workers and any HSRs if you have them. More information about the risk management process can be found in the Code of Practice: How to Manage Work Health and Safety Risks and Work Health and Safety Consultation here.


Third-party sexual harassment

Sexual harassment at the workplace may also be committed by a third-party, such as customers, clients, patients or members of the public. Although it may be difficult to control the actions of third-parties, you must still eliminate or minimise the risks of third‐party sexual harassment occurring at your workplace so far as is reasonably practicable.

  • talk to your workers about when and where they feel at risk of experiencing sexual harassment when they perform their work e.g. serving customers at night or working at a client’s home
  • walk-through and inspect the physical work environment for hazards and risks e.g., low visibility in service areas that limits natural surveillance, amenities are in an isolated location or workers use shared amenities with customers
  • consider changing work practices that carry risks of exposure e.g., working alone or at night
  • observe customer behaviour and how people interact with workers.


Safe work systems and procedures

Your health and safety management systems, policies and procedures should be part of the overall sexual harassment prevention strategy. You should consider:

  • Implementing sexual harassment workplace policies which set out standards of behaviour and procedures for what a worker should do if they experience or see sexual harassment and how they can report it, including where sexual harassment occurs at a remote location or online.
  • Ensure these procedures are well understood by all workers (e.g., through training, providing policies electronically or on noticeboards) and are implemented consistently across all areas of the business and all levels of worker.
  • Providing regular supervision and communication with workers, particularly when workers are at remote locations or working from home.
  • Ensuring that there is a clear and accessible complaints resolution process, to allow employees to raise complaints and grievances about sexual harassment.

Further information on how to prepare a sexual harassment policy can be found here.


Encourage reporting of sexual harassment

The Australian Human Rights Commission survey in 2018 found that the majority of people who were sexually harassed did not make a formal report or complaint. Workers might not report sexual harassment because:

  • it is seen as just ‘part of the job’ or the work culture and nothing can be done about it
  • they believe only the most serious incidents should be reported
  • they think reports will be ignored or not handled respectfully and confidentially
  • they fear they will be blamed or that reporting may expose them to additional harm, discrimination or disadvantage (such as losing their job or negative impacts on their reputation or career)
  • a perpetrator may have organisational power over them (such as a manager or supervisor) or is in a position of influence, such as a client, or they do not understand or know their workplace rights, what behaviour should be reported or how to report it, particularly if workers are culturally or linguistically diverse.

Workers should be encouraged to report sexual harassment and behaviour that causes concern. You can do this by:

  • providing workers with a range of accessible and user-friendly ways to report sexual harassment informally, formally, anonymously and confidentially
  • talking to workers to make sure they understand how to report sexual harassment or behaviours of concern, their right to representation and the support, protection and advice available
  • training key workers (contact persons) to receive reports of sexual harassment and give support and advice


Information, instruction, training and supervision

You must provide your workers with information, instruction, training and supervision to support your overall strategy for preventing sexual harassment. Training, instruction and information should be provided to workers at all levels of an organisation and be easily accessible.

It must be provided in a form that can be understood by all workers, for example workers who are culturally or linguistically diverse. Depending on the size and nature of your business, this may be done by:

  • verbally informing all workers about the workplace policies
  • displaying the policy on notice boards
  • publishing the policy on the staff intranet or emailing it to workers
  • distributing brochures or displaying posters, and providing training on preventing sexual harassment, including through induction processes for new workers and
  • Ideally, getting workers to sign an acknowledgment that they have read and understood the policy

Risk management is an ongoing process. You should review your risk management systems regularly making improvements where necessary to ensure you continue to eliminate or minimise the risk of sexual harassment.

Keeping records on reports of sexual harassment and actions taken can be useful in analysing trends, identifying systemic risk factors, and can be an important source of information for boards and governing bodies.


Responding to reports of sexual harassment

If a worker or anyone at your workplace is in immediate danger, call 000.

When dealing with reports of sexual harassment, you should:

  • act promptly and ensure the safety of the workers involved
  • consult with the complainant to determine whether they wish to pursue their complaint formally, informally or in some other way, and what support they require
  • clearly communicate the process to everyone involved (including both sides of the complaint and witnesses if appropriate)
  • protect all people involved from victimisation e.g., being bullied or intimidated etc.
  • tell all people involved what support and representation is available
  • maintain confidentiality
  • treat everyone involved fairly, and ensure all actions and decisions are documented and information is stored securely.

The Australian Human Rights Commission provides good practice guidelines for internal complaint processes in the guide Ending workplace sexual harassment: A resource for small, medium and large employers, and the Respect at Work guide.


Referral to other agencies

When dealing with a report of sexual harassment and discussing referral to other agencies, it is very important to respect the complainant’s desired outcome and preferred way of managing the complaint. Workers should be supported if they wish to contact the:

  • Australian Human Rights Commission
  • state or territory anti-discrimination agency
  • state or territory WHS regulator, or
  • Police for matters that may be criminal offences.

Depending on the circumstances, even if a matter has been referred to Police or another agency, the WHS Regulator may still be involved. Even if an external complaint has been made, it may still be appropriate and necessary to conduct an internal investigation of the complaint to ensure that it is appropriately addressed.


Resources and support services


Australian Human Rights Commission Resources

Effectively preventing and responding to sexual harassment: A Code of Practice for Employers (2008) | Australian Human Rights Commission

Ending workplace sexual harassment: A resource for small, medium and large employers | Australian Human Rights Commission


If you have any questions regarding the information above, or if you would like assistance regarding an incident that has occurred in your workplace, please contact the MTA WR team on 8291 2000 or at wr@mtasant.com.au.