Managing people

What counts as sexual harassment?

What counts, and what doesn’t count, when it comes to sexual harassment and acceptable workplace behaviour?

15 September 2022

Media reports often draw attention to cases involving blatant sexual harassment but, in other instances, workplace behaviour seen as offensive by some is regarded as quite unobjectionable by others. So what counts, and what doesn’t count, when it comes to sexual harassment and acceptable workplace behaviour?

For example, a hypothetical scenario: a man draws a female colleague’s attention to the website of a (non-work-related) group he belongs to, her brief glance at the screen reveals some rather under-dressed women he’s met through the group, and she feels he’s looking to recruit her as a potential member. For her, this is more than unwelcome: she feels his behaviour is unacceptable and downright offensive. But is she justified in making a formal complaint? Or should she just say ‘Not my cup of tea,’ and walk away?

Inappropriate behaviour can be very difficult to define, given that different individuals can interpret and respond to particular words and actions in such widely different ways.

Behaviours likely to constitute sexual harassment include, but are not limited to:

  • actual or attempted rape or sexual assault
  • requests or pressure for sexual acts
  • unwelcome touching, hugging, cornering or kissing, sexually explicit comments made in emails, SMS messages or on social media, and
  • sexually suggestive comments or jokes that made the person feel offended.

In a survey of 10,000 people by the Australian Human Rights Commission, the single most common type of sexual harassment was exposure to sexually suggestive comments or jokes, which account for just under one-fifth of the incidents experienced in the workplace. The second most widespread form of harassment was identified as intrusive questions about a person’s private life or appearance, followed by inappropriate staring or leering.

The view of the courts

Sexual harassment case studies include numerous cases based on court and tribunal decisions as well as conciliated outcomes. Where there is a recognisable personal injury, the courts generally aim at consistency with other personal injury cases, awarding damages in terms of pain, suffering, loss of enjoyment of life, and the offence, embarrassment, humiliation and intimidation suffered, as well as past and future financial loss and treatment costs.

And the evidence indicates that many individuals do genuinely suffer severe distress, anxiety, depression and even an inability to continue in their job.

This suggests that the subjective experience of the person on the receiving end of sexual harassment is taken very seriously, even in situations where there was no malice or ill-intent, and another person may have dismissed the incidents as trivial or unimportant.

Damages in the hundreds of thousands of dollars have been made in many cases.

Employers’ obligations

Employers are responsible for providing a safe working environment for their staff. They must ensure that workers are able to seek support, and that inappropriate behaviour is properly addressed. No sexual harassment should be ‘part of the job’, or dismissed as ‘just a joke’ or ‘a compliment’.

Business leaders recognise their responsibility to drive good behaviour and make sure everyone in their workforce understands what is expected of them in terms of workplace behaviour.

Much of this comes down to workplace culture. Employers need to establish and maintain workplace cultures where sexual harassment is not tolerated and where there will be consequences for those breaching policies and expectations of acceptable conduct in the workplace.

Employers also need to understand that most people who experience sexual harassment at work don’t complain about it, for fear of not being believed, or other repercussions. The Human Rights Commission survey found that fewer than one-in-five people actually made a formal report or complaint about workplace sexual harassment. Of those, about one-fifth of them were labelled as troublemakers and many were ostracised or victimised by colleagues or ended up resigning. And a substantial proportion said that there was no real improvement or change after they complained.

Sexual harassment can be a major source of stress for employees, and it can also have an adverse effect on workplace productivity, not to mention impeding workers’ effectiveness in their jobs and disrupting their career progression, which in turn has an economic impact on businesses and families.

For all these reasons, employers need to do what they can to instil and maintain standards of workplace behaviour and take every complaint of sexual harassment seriously, examining it carefully on its merits.

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