When can sexual harassment occur in the workplace?

Under the Sex Discrimination Act 1984, it is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.

Sexual harassment can happen when one employee makes unwanted sexual propositions, requests for sexual favors, and other verbal or physical conduct of a sexual nature, to another employee, against their wishes.

Sexual harassment can happen in many different circumstances. These are a few examples of sexual harassment.

• Unwanted Touching or contact such as scratching or massaging a co-worker’s back, grasping an employee around the waist, or preventing an employee's capacity to move.
• Intrusive questions about an employee’s life or body
• Continuous requests for dates that are denied or unwelcome flirting.
• Emailing pictures of a sexual or offensive nature.
• Sexual or sexist jokes, gestures or offensive words on clothing unwelcome comments or banter
• Displaying sexually suggestive or obscene objects, pictures, or posters.
• Playing sexually suggestive music.

When a complaint is made to a supervisor, another employee, or the Human Resources office, about sexual harassment, a prompt investigation of the charge should occur. Employees need to be made aware that they have a responsibility to report sexual harassment issues to their supervisor or the Human Resources office.

Sexual harassment is unwelcome sexual behaviour, which could be expected to make a person feel offended, uncomfortable, humiliated, intimidated or pressured to do something unrelated to their work. It can be physical, verbal or written.

Sexual harassment is covered in the workplace when it happens:

• at work
• at work-related events
• between people sharing the same workplace
• between colleagues outside of work

A workplace includes any place that a person attends for the aim of carrying out their work or trade. They do not need to be an employer or employee of the workplace.

Physical workplace boundaries as such no longer exist under the WHS Act. A workplace under the WHS Act is wherever a worker is ‘at work’ and is not restricted by a building, vehicle or other structure. A worker is at their workplace whenever they are engaged in a work activity.

For example; an electrician comes to do some work in a supermarket, in his time there he is sexually harassed by one of the supermarket staff. Although he is not employed by the supermarket but by an electrical company, he is still covered by the law.

The definition of workplace includes:

• common areas, i.e. entrances, elevators, hallways,  kitchens and bathrooms
• travel to and from work or for a work function
• functions at the premises of clients, suppliers, associated businesses or any other venues where work functions are held

What is the difference between bullying and harassment?

Whilst neither bullying nor harassment should be tolerated in the workplace, many employers often fail to see or acknowledge the difference between the two, and effectively, they often tend to deal with both matters in the same way. 

Bullying can be identified by its repetitive nature; it is unsolicited and irrational behaviour towards an individual or group of employees that results in a risk to health and safety. It is the responsibility of an employer to ensure the safety of the workplace and prevent bullying from occurring, as failure to do so may result in investigation and prosecution.

Harassment on the other hand is also unsolicited behaviour that may demean, upset or intimidate a person, and victimizes them through such behaviour on the basis of their physiognomies such as sex or ethnicity.

Bullying expert and author of Bully Free At Work, Valerie Cade, explains that bullying has “the intent of hurting someone else”, whilst harassment  “violates people's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment".

Cade also provides some key identifiers on the difference between bullying and harassment:

•     Harassment is intrusive and invasive and, has a very physical aspect to it including disrespecting a person’s space and/or damaging their possessions
•     Harassment is recognizable by its explicit nature
•     Harassment can be inclusive of aggressive and offensive language
•     Victims of harassment are usually aware of the injustice being done towards them
•     Victims of bullying may not recognize such injustice that is being done towards them until the damage is done
•     Bullying is more likely to be concealed and to occur in private, where it cannot be seen or witnessed by fellow employees
•     Workplace bullying is often psychological. 
•     Bullying is often linked to staged attacks on individuals

When dealing with harassment, policies should be implemented to ensure positive resolution for all parties involved, and protects the relationship from suffering in the workplace. Bullying on the other hand requires immediate action via policies that eliminate the source of bullying and prevent it from recurring. Whilst there may be cases in which a victim of bullying wishes to avoid reporting the issue, the responsibility of an employer according to their workplace health and safety obligations, is to investigate and reconcile the issue, and prevent them from recurring.

To minimize your risk as an employer, you should consider developing proactive bullying and harassment policies that will ensure that your workforce is safe, engaged and productive. Contact Annette at End2End Business Solutions on (02) 8977 4002 for advice on establishing workplace policies for your business.