Under the Federal definition and all States (except Western Australia), sexual harassment is made up of two components; the first component is the type of behaviour that is unlawful, the second is what will happen to the person if they refuse to go along with the unlawful behaviour.

Type of Behaviour

There are three types of unlawful behaviour, which are-

• 1. An unwelcome sexual advance
• 2. An unwelcome request for sexual favours
• 3. Unwelcome conduct of a sexual nature

The behaviour covers oral or written statements and would include images, physical gestures, sexually explicit material via email, on a person’s computer screen, sexual jokes and banter and touching. It has been held that it is no excuse to a sexual harassment claim that sexual conversations and banter were part of the work culture.

The second part of the definition provides that the unwelcome sexual behaviour must occur “in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.”

Examples of sexual harassment are

• where a person was asked for sexual favours and subjected to physical contact and subsequently sexual assaulted
• During a business trip to Sydney the employer made sexually suggestive remarks, repeatedly suggested seeing a live sex show and entered the applicant’s bedroom uninvited and in his underpants and holding a pillow
• An assistant in a butcher’s shop was asked “how’s your love life?” and negative comments about her boyfriend and his sexual prowess

What to do if someone thinks they have been sexually harassed at work

If a person thinks they are a victim of sexual harassment then the first thing they can do is find out if their organisation has a policy about sexual harassment and see if it contains a definition similar to the one mentioned above. If it does then they can use this policy to have a conversation with their manager/HR or any other person in authority. Tell him/her what has happened to them and why they think this is sexual harassment. It is useful to work out what he/she want the manager/HR to do about it the issue and to ask for it to be done.

Possible things someone could ask their manager to do is have a chat to the person doing the behaviour and find out what their view is and then see if there is room for a combined discussion. Sometimes people might not even know they are doing anything unlawful so giving them a chance to understand/explain their point of view is important. Someone could also ask their organisation to provide education to staff in this area, put posters up or send out emails reminding people of what is appropriate/inappropriate behaviour.

If the behaviour is very serious (either because it has been going on for a long time, or is being done by someone in authority or the actual incident is serious) then someone might want to ask their organisation to formally investigate it. They should check and see if their organisation has a grievance management document. If it does it should explain when a matter will be formal and what will be done. Normally a formal investigation has to be in writing and should explain what has happened by who, when and where. It is important to stick to the facts and avoid emotional language when making a formal complaint.

Once the complaint is formal then the organisation should investigate it. This means they will interview the complainant (person making the complaint) and any relevant people to support their story and they will also interview the respondent (person responding to the complaint) and any relevant people he/she has. Once they have collected all of the facts the information is then used to make a decision, usually by the CEO or equivalent.

If someone does not want to make a complaint internally or they have and it has not been handled to their satisfaction then they can contact the Equal Opportunity Commission in their State. Each Commission offers a free conciliation service for victims of sexual harassment. Most matters are sorted out at this stage.

EEO Specialists do not represent individual people making complaints but we hope this information has been useful in helping work out what to do.

We do provide a comprehensive training service for organisations, to educate their staff about sexual harassment, bullying and discrimination and manager training on how to identify and manage complaints. If you would like to know more, please call Franca Sala Tenna on (08) 6102 4411.