Devel­op­ing a shared under­stand­ing of sex­u­al harassment

Sex­u­al harass­ment in Aus­tralian work­places impacts one in five work­ers each year and remains pre­dom­i­nant­ly unre­port­ed. There are many rea­sons why this sys­temic issue remains unad­dressed includ­ing legal, cul­tur­al and social fac­tors. At the core of this prob­lem is the fact that many Aus­tralians do not com­plete­ly under­stand what sex­u­al harass­ment is, and this is a sig­nif­i­cant bar­ri­er to report­ing and resolv­ing sex­u­al harass­ment in the workplace.

Defin­ing sex­u­al harassment

The def­i­n­i­tion of sex­u­al harass­ment varies between juris­dic­tions but is gen­er­al­ly defined as follows:

“Sex­u­al harass­ment is an unwel­come sex­u­al advance, unwel­come request for sex­u­al favours or oth­er unwel­come con­duct of a sex­u­al nature which, in the cir­cum­stances, a rea­son­able per­son, aware of those cir­cum­stances, would antic­i­pate the pos­si­bil­i­ty that the per­son would feel offend­ed, humil­i­at­ed or intimidated.”

This def­i­n­i­tion is draft­ed to be inten­tion­al­ly broad so that it max­imis­es inclu­sive­ness. How­ev­er, this is at the expense of speci­fici­ty which can cre­ate some con­fu­sion as to appli­ca­tion and imple­men­ta­tion. This style of draft­ing cre­ates a gen­er­alised rule that encom­pass­es the most com­mon expe­ri­ences of behav­iour. Effec­tive rules con­sid­er par­tic­u­lar attrib­ut­es or sit­u­a­tions in order to gen­er­alise a cat­e­go­ry or def­i­n­i­tion as the oper­a­tive basis of that rule. How­ev­er, the lim­i­ta­tion of this approach to rule­mak­ing is that rules can often be dif­fi­cult to under­stand, and dif­fi­cult to apply to an indi­vid­u­al’s spe­cif­ic cir­cum­stances. Two of the key com­po­nents of the def­i­n­i­tion of sex­u­al harass­ment include ​‘con­duct of a sex­u­al nature’ and ​‘unwel­come con­duct’, which are explained below. Impor­tant­ly, in mat­ters of sex­u­al harass­ment the evi­den­tiary bur­den rests with the appli­cant (Djo­kic v Sin­clair [1994] HRE­O­CA 16) which high­lights the dif­fi­cul­ties with broad reg­u­la­tion drafting.

“Con­duct of a sex­u­al nature”

Con­duct of a sex­u­al nature has been inter­pret­ed broad­ly and in a non-exhaus­tive fash­ion. Con­duct of a sex­u­al nature includes per­son­al and inap­pro­pri­ate com­ments (as deter­mined in Cooke v Plauen Hold­ings Pty Ltd [2001] FMCA 91), using objects in a sex­u­al­ly sug­ges­tive man­ner (see Johan­son v Blackedge [2001] FMCA 6) and per­son­al ques­tions relat­ing to the appli­can­t’s rela­tion­ship sta­tus (see Alesovs­ki v Aus­tralian Aero­space Pty Ltd [2002] FMCA 81). This demon­strates that the rule is both draft­ed and inter­pret­ed broad­ly and there­fore includes a wide range of con­duct with the only oper­a­tive com­po­nent being that it is sex­u­al in nature. 

“Unwel­come conduct”

In Aldridge v Booth [1988] FCA 279 unwel­come con­duct was defined as con­duct that is not solicit­ed or invit­ed, and the indi­vid­ual regards that con­duct as unde­sir­able or offen­sive. This can cre­ate some con­fu­sion as the onus is on the appli­cant to estab­lish that the behav­iour was unwel­come (see O’Callaghan v Loder [1983] NSWLR 89). The def­i­n­i­tion of unwel­come con­duct has devel­oped in a more com­pli­cat­ed man­ner with the inter­pre­ta­tion of ​‘unwel­come’ being quite con­fined and fac­tu­al­ly specific.

Col­in Ramon Reguero-Peunte v City of Rock­ing­ham (U2017/13857) is a recent deci­sion of the Fair Work Com­mis­sion deal­ing with an unfair dis­missal that also addressed sex­u­al harass­ment. In this case the FWC held that the young woman who expe­ri­enced sex­u­al harass­ment did not need to explic­it­ly reject the behav­iour in order for it to be unwel­come. Instead, the pow­er dynam­ics and indi­vid­u­al’s unwill­ing­ness to engage in con­fronta­tion was deemed an appro­pri­ate rea­son for her not to explic­it­ly address the behav­iour and iden­ti­fy it as unwel­come to the per­pe­tra­tor. While not a spe­cif­ic anti-dis­crim­i­na­tion case, it rep­re­sents a grow­ing under­stand­ing in the judi­cia­ry that indi­vid­u­als respond to sex­u­al harass­ment in dif­fer­ent ways, with a pri­ma­ry defen­sive response often being to defuse sit­u­a­tions rather than inflame them fur­ther. This aligns with the find­ing in San v Dirluck Pty Ltd [2005] FMCA 750 where the vic­tim’s friend­ly response was per­ceived as mere­ly for the pur­pose of alle­vi­at­ing the inap­pro­pri­ate behav­iour. How­ev­er, this is at odds with Daley v Bar­ring­ton [2003] FMCA 93 in which Raphael FM ruled that the behav­iour did not meet the def­i­n­i­tion of ​‘unwel­come con­duct’. This was based on the respon­den­t’s claim that he did not realise his con­duct was sex­u­al in nature, and the appli­can­t’s friend­ly response to the behav­iour as an indi­ca­tion that the behav­iour was not unwel­come. This demon­strates dif­fer­ing views on how the vic­tim’s imme­di­ate response can be inter­pret­ed to indi­cate whether the con­duct in ques­tion is ​‘unwel­come conduct’.

Sex­u­al­ly harass­ing behaviours

In the Aus­tralian Human Rights Com­mis­sion 2018 report ​‘Every­one’s busi­ness: Fourth nation­al sur­vey on sex­u­al harass­ment in Aus­tralian work­places’, it was report­ed that only 43% of respon­dents report­ed hav­ing expe­ri­enced sex­u­al harass­ment based on the legal def­i­n­i­tion. How­ev­er, 71% of respon­dents indi­cat­ed hav­ing expe­ri­enced sex­u­al harass­ment when ref­er­enc­ing a list of com­mon sex­u­al­ly harass­ing behav­iours. In par­tic­u­lar, there was a sig­nif­i­cant increase in the recog­ni­tion of sex­u­al­ly harass­ing behav­iour from respon­dents of a non-Eng­lish speak­ing back­ground. This demon­strates a dis­tinct gap between the legal def­i­n­i­tion and an indi­vid­u­al’s under­stand­ing of sex­u­al harassment.

The impli­ca­tions of this gap are that many indi­vid­u­als and busi­ness­es may not accu­rate­ly iden­ti­fy sex­u­al­ly harass­ing behav­iour. In turn, this means that indi­vid­u­als are less like­ly to report sex­u­al harass­ment, and busi­ness­es are less like­ly to ade­quate­ly mit­i­gate the risk and preva­lence of sex­u­al harassment.

Gen­er­al­ly speak­ing, indi­vid­u­als are more like­ly to engage in a strict read­ing of the def­i­n­i­tion of sex­u­al harass­ment when doing so in ref­er­ence to their own per­son­al expe­ri­ence. This means that indi­vid­u­als are less like­ly to iden­ti­fy what they have expe­ri­enced as sex­u­al harass­ment and, by exten­sion, less like­ly to report. This is of course com­pound­ed by the immense stig­ma asso­ci­at­ed with sex­u­al harass­ment, and the dif­fi­cul­ty expe­ri­enced by indi­vid­u­als as they under­take any report­ing or par­tic­i­pate in an inves­ti­ga­tion process. Fur­ther, this is exac­er­bat­ed by the bur­den of proof that rests with the appli­cant (Djo­kic v Sinclair [1994] HRE­O­CA 16). Ulti­mate­ly, no pol­i­cy in the work­place can ful­ly address sex­u­al harass­ment unless there is a shared under­stand­ing of what con­sti­tutes sex­u­al­ly harass­ing behaviour.

The list of exam­ples of sex­u­al­ly harass­ing behav­iours that the AHRC has pro­vid­ed are as follows:

• unwel­come touch­ing, hug­ging, cor­ner­ing or kissing; 
• inap­pro­pri­ate star­ing or leer­ing that made you feel intimidated; 
• sex­u­al ges­tures, inde­cent expo­sure or inap­pro­pri­ate dis­play of the body; 
• sex­u­al­ly explic­it pic­tures, posters or gifts that made you feel offended; 
• repeat­ed or inap­pro­pri­ate invi­ta­tions to go out on dates; 
• intru­sive ques­tions about your pri­vate life or phys­i­cal appear­ance that made you feel offended; 
• sex­u­al­ly explic­it com­ments made in emails, SMS mes­sages or on social media 
• inap­pro­pri­ate phys­i­cal contact; 
• repeat­ed or inap­pro­pri­ate advances on email, social net­work­ing web­sites or inter­net chat rooms; 
• being fol­lowed, watched or some­one loi­ter­ing nearby; 
• sex­u­al­ly sug­ges­tive com­ments or jokes that made you feel offended; 
• shar­ing or threat­en­ing to share inti­mate images or film of you with­out your consent; 
• inde­cent phone calls, includ­ing some­one leav­ing a sex­u­al­ly explic­it mes­sage on voice­mail or an answer­ing machine; 
• requests or pres­sure for sex or oth­er sex­u­al acts; 
• actu­al or attempt­ed rape or sex­u­al assault; and 
• any oth­er unwel­come con­duct of a sex­u­al nature that occurred online or via some form of technology.

There are a num­ber of behav­iours with­in this non-exhaus­tive list that indi­vid­u­als and busi­ness­es may not asso­ciate with the legal def­i­n­i­tion of sex­u­al harass­ment. There­fore, a key mea­sure in pre­vent­ing and respond­ing to sex­u­al harass­ment in the work­place is devel­op­ing a shared under­stand­ing of what con­sti­tutes sex­u­al harassment.

Pre­vent­ing sex­u­al harassment

It is impor­tant for indi­vid­u­als and busi­ness­es to have open dia­logue on what con­sti­tutes sex­u­al­ly harass­ing behav­iour. Open dia­logue is nec­es­sary to raise aware­ness with­in the work­place and devel­op a shared under­stand­ing of what behav­iours are inap­pro­pri­ate. This can be achieved by mov­ing away form a strict legal read­ing of sex­u­al harass­ment and towards a broad­er con­ver­sa­tion about what sex­u­al­ly harass­ing behav­iour is. This will not only help vic­tims iden­ti­fy what they have expe­ri­enced as sex­u­al harass­ment, but it will also increase the like­li­hood of bystanders recog­nis­ing sex­u­al harass­ment, busi­ness­es pre­vent­ing and mit­i­gat­ing sex­u­al harass­ment, and wrong­do­ers under­stand­ing that their behav­iour is not accept­able conduct. 

Prac­ti­cal mea­sures that employ­ers can take include engag­ing in proac­tive train­ing mea­sures to edu­cate employ­ees on sex­u­al harass­ment and amend­ing work­place poli­cies to iden­ti­fy pro­hib­it­ed behav­iours along­side the legal def­i­n­i­tion. It is also impor­tant for man­agers to be trained on how to appro­pri­ate­ly deal with com­plaints of sex­u­al harass­ment and how to address inap­pro­pri­ate behaviour.

Resolv­ing complaints

Sex­u­al harass­ment is often under­re­port­ed due to asso­ci­at­ed stig­ma, and the dif­fi­cul­ty that com­plainants expe­ri­ence in con­tin­u­ing work in the midst of an inves­ti­ga­tion. When an employ­ee makes a com­plaint about sex­u­al harass­ment it is impor­tant that each com­plaint is treat­ed seri­ous­ly, with sen­si­tiv­i­ty and con­fi­den­tial­i­ty. It is rea­son­able to expect that the indi­vid­ual may not want to con­tin­ue work­ing along­side the per­pe­tra­tor. In addi­tion, many indi­vid­u­als make com­plaints of sex­u­al harass­ment with a request that there be no inves­ti­ga­tion and the com­plaint remain anony­mous. It is impor­tant to remind the com­plainant of the cor­rect pro­ce­dure and make gen­uine attempts to pro­vide organ­i­sa­tion­al jus­tice. Where the con­duct is par­tic­u­lar­ly con­cern­ing, employ­ers should con­sid­er their oblig­a­tions under work health and safe­ty leg­is­la­tion to main­tain a safe work­place. This may mean that the con­duct is inves­ti­gat­ed with­out the vic­tim’s consent.

As to the def­i­n­i­tion of sex­u­al harass­ment, it is par­tic­u­lar­ly impor­tant for employ­ers to recog­nise that an indi­vid­u­al’s ini­tial reac­tion may not be a defin­i­tive indi­ca­tor of whether or not the behav­iour is unwel­come. As not­ed above often vic­tims may respond to sex­u­al­ly harass­ing behav­iour by attempt­ing to defuse the sit­u­a­tion, often with humour, com­pla­cen­cy or freez­ing as a defence mech­a­nism. An out­right rejec­tion of the behav­iour is not required in order for con­duct to be con­sid­ered sex­u­al harassment.

Work­place cul­ture can also fos­ter sex­u­al harass­ment. Even where there is no spe­cif­ic com­plaint, man­agers should remain vig­i­lant in iden­ti­fy­ing behav­iour that may cre­ate a work­place cul­ture of sex­u­al harass­ment. A cul­ture that fos­ters sex­u­al harass­ment is more like­ly to result in more seri­ous instances of mis­con­duct at a lat­er date. This may include cul­tures where sex­u­al­ly sug­ges­tive com­ments, jokes and media such as pornog­ra­phy is accept­ed. Employ­ers should seri­ous­ly address this behav­iour and set clear rules that iden­ti­fy and define inap­pro­pri­ate behav­iour. Addi­tion­al­ly, where busi­ness­es fail to address sex­u­al harass­ment his­tor­i­cal­ly, it can cre­ate long stand­ing appre­hen­sion and cul­tur­al issues for exist­ing and future employ­ees. These issues are exac­er­bat­ed in small teams and small busi­ness­es. Work­ing with employ­ees to cre­ate a pos­i­tive cul­ture free of sex­u­al harass­ment is crit­i­cal in pre­vent­ing ongo­ing misconduct.

Key points

Based on the above, the key take­aways are:

• the inter­pre­ta­tion of ​‘con­duct of a sex­u­al nature’ is inter­pret­ed broad­ly by the courts to include a wide array of behaviour
• ‘unwel­come con­duct’ is a more con­fined term and will turn on the courts’ inter­pre­ta­tion of the facts sur­round­ing the com­plaint, includ­ing the appli­can­t’s reac­tion at the time the con­duct took place
• many employ­ees do not ful­ly under­stand the broad def­i­n­i­tion of sex­u­al harass­ment, so includ­ing a list of pro­hib­it­ed behav­iours can help strength­en your exist­ing policy
• work­place cul­ture can be a key fac­tor that can encour­age or pro­hib­it sex­u­al harass­ment, so employ­ers should avoid wait­ing until there is a com­plaint before address­ing misconduct
• man­agers should famil­iarise them­selves with the dif­fer­ent types of defen­sive behav­iour and reac­tions that indi­vid­u­als can exhib­it when exposed to conflict 
• man­agers and employ­ees should work togeth­er to under­stand and agree on what con­sti­tutes sex­u­al harassment