Sexual harassment at work is profoundly damaging and unfair

Sexual harassment affects Australians where it hurts, their fair access to work, promotion and equality of opportunity, writes Human Rights Commission president Professor Gillian Triggs.

Gender rights are no joke. Australian law gives us all a legal right to live and work free from sexual harassment. 

But where does behaviour that is inappropriate, disrespectful or just plain rude cross the line to become unlawful? This is a question the Australian Human Rights Commission has been working on for 30 years. 

Illustration: Michael Mucci
Illustration: Michael Mucci 

Each year the commission receives about 20,000 inquiries and 2388 complaints alleging breaches of human rights and anti-discrimination law. About 20 per cent (453) of all complaints arise under the Sex Discrimination Act 1984  and, overwhelmingly, such complaints allege sexual harassment at work.  In short, significant numbers of women and men seek to enforce their right not to be sexually harassed in that most vital arena, employment. Sexual harassment is no joking matter. It is not trivial or slight. It affects Australians where it hurts, their fair access to work, promotion and equality of opportunity. 

So, what behaviour does the law say amounts to sexual harassment?  The Sex Discrimination Act, section 28, defines "sexual harassment" as the unwelcome conduct of a sexual nature that a reasonable person would anticipate that the person harassed would feel offended, humiliated or intimidated by. Sexual harassment is unlawful if it arises in certain contexts including employment, education and the provision of goods and services. It is, additionally, unlawful for a member of the committee of management of a club to sexually harass a member of that club, or for an employment agent to sexually harass a person using their services. 

Unlawful sexual harassment can include:

  • Making sexually suggestive comments or jokes
  • Asking intrusive questions about a person's private life or physical appearance
  • Staring or leering inappropriately
  • Hugging, kissing or  physical contact where this is unwelcome or inappropriate
  • Sending sexually explicit text messages, images, phone calls or emails

The commission investigates, and usually succeeds in conciliating, serious complaints of sexual harassment. 

Just one example, among hundreds, concerns a woman – let's call her Beth – who worked as a personal carer for a health service. She alleged that a client said she had a "great-looking arse" and asked her for sexual favours. Beth complained to her employer but alleged that she was given fewer shifts as a direct consequence. The complaint was resolved through the commission by agreement with the employer that it would pay Beth damages and write to her acknowledging her distress in relation to the incident. 

It's important to note that in many cases, the resolution of such complaints also includes agreements that employers will introduce training or policies to educate about sexual harassment and prevent its recurrence.

Another example is the case of a male employee who worked for an insurance company. Simon (not his real name) complained to the commission that he had been sexually harassed by a security guard who showed Simon pornographic images and invited him into the toilets for sex. Simon claimed this sparked other employees to start sexually harassing him, before his employment was terminated. 

The commission resolved the complaint and ordered   that Simon be paid damages. 

Such complaints to the commission do not tell us the whole story. To better understand the incidence of sexual harassment in employment throughout Australia the commission conducted a national survey in 2012. This research demonstrated that just over one in five employees over the age of 15 years (21 per cent) had experienced sexual harassment in the workplace over the past five years. 

Sexual harassment is especially targeted against women.  A staggering  one in four women are sexually harassed in the course of their employment.  But sexual harassment is not confined to women. One in six men (16 per cent) experienced sexual harassment in the workplace over the same five-year period.

Sexual harassment continues to be an issue in Australian workplaces. This is so despite the introduction of stronger laws prohibiting sexual harassment and genuine efforts by employers to change workplace cultures to prevent such behaviour.

Over the holiday season we have seen Australians – both men and women – roundly condemn incidents of inappropriate sexual behaviour, whether in sport, politics or employment. Painful though it may be to see our politicians and sporting icons exposed to public ridicule, or worse, lose a ministerial portfolio, it is heartening that, as a community, we are determined not to condone such acts as mere jokes. In reality, sexual harassment, especially at work, is profoundly damaging and unfair. 

Where do we draw the line? That will depend on the facts of each case. Let us hope that in 2016 we can learn from recent events and that employers, employees, unions, employer associations and the community will  stand up against sexual harassment in the workplace or, indeed, anywhere. 

After all, being free from sexual harassment is a basic human right. 

Professor Gillian Triggs is the president of the Australian Human Rights Commission.