Sexual harassment, harassment on the ground of sex or discrimination

Sexual harassment:

‘Any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated’.[i]

Sexual harassment can also occur in a sexually charged or ‘hostile’ work environment, even if the conduct is not directed at a specific person.[ii]

Examples of sexual harassment include:

• inappropriate physical contact
• unwelcome touching, hugging, cornering or kissing
• intrusive questions about a person’s private life or physical appearance
• sexually suggestive comments or jokes that offend or intimidate
• actual or attempted rape or sexual assault.[iii]

Harassment on the ground of sex:

‘Any unwelcome conduct of a seriously demeaning nature by reason of the person's sex in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated’.[iv]

Examples of harassment on the ground of sex include:

• asking intrusive personal questions based on a person’s sex
• making inappropriate comments and jokes to a person based on their sex
• displaying images or materials that are sexist, misogynistic or misandrist
• making sexist, misogynistic or misandrist remarks about a specific person
• requesting a person to engage in degrading conduct based on their sex.[v]

Harassment on the ground of sex and sexual harassment can occur in combination, but the behaviours constituting each differ in nature.

Direct and indirect discrimination:

Direct discrimination happens ‘when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics’ – for example, an employer refusing to hire a suitably qualified candidate based on their gender or racial background.

Indirect discrimination happens ‘when an unreasonable rule or policy applies to everyone but has the effect of disadvantaging some people because of a personal characteristic they share’. For example, a policy outlining that only full-time employees are eligible for promotion could discriminate against women, who are more likely than men to work part-time to manage their caring responsibilities.

• not hiring a woman based on assumptions that she will not fit into a ‘traditionally’ male workplace
• not paying a woman and man the same salary for the same work
• not providing the same opportunities to employees for training, mentoring or promotion
• actual or attempted rape or sexual assault.[vi]

Meet your legal obligations

At a minimum, employers should ensure that they meet their legal obligations on workplace sexual harassment.

Legal obligations changed following the passage of the Respect at Work Bill 2022. Employers have a positive duty to prevent unlawful behaviours, including sexual harassment, harassment on the ground of sex and discrimination in connection with the workplace, under the Sex Discrimination Act 1984 (Cth). Sexual harassment is also prohibited under the Fair Work Act 2009.

These amendments complement the existing positive duty under the model work health and safety laws for a person conducting a business or undertaking to do all that they reasonably can to eliminate or minimise the risk of sexual harassment at work. These changes aim to enhance the effectiveness of Australia’s legal and regulatory frameworks for employers prevention and response to workplace sexual harassment.

Employers should understand and ensure they are compliant with any relevant legislation relating to workplace sexual harassment, including (but not limited to):

• positive duty obligations under the Sex Discrimination Act 1984 (Cth)
• obligations under work health and safety laws
• obligations under workplace or industrial relations laws, such as the Fair Work Act 2009 (Cth)
• obligations under any state or territory anti-discrimination laws.

For more information on positive duty and work health and safety obligations, see:

• The positive duty under the Sex Discrimination Act | Australian Human Rights Commission
• The prohibition on workplace sexual harassment | Fair Work Commission
• Workplace sexual harassment | Safe Work Australia
• Sexual harassment in the workplace | Fair Work Ombudsman

Take action to prevent and respond to workplace sexual harassment

The Respect@Work report outlined a framework for employers to take a more holistic approach to preventing and responding to workplace sexual harassment. This framework recommends actions across 7 domains:

1. Leadership
2. Culture
3. Knowledge
4. Risk management
5. Support
6. Reporting and response
7. Monitoring, evaluation and transparency

This framework also forms the basis of the Australian Human Rights Commission’s guidance on meeting the positive duty under the Sex Discrimination Act.

Use evidence to inform your actions

The WGEA guide, Using evidence to improve workplace sexual harassment and response: Guidance for employers, includes advice and practical tips for employers to collect, analyse and report information on the prevalence of sexual harassment in their workplace.