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  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  FMCA 91), using objects in a sexually suggestive manner (see Johanson v Blackedge  FMCA 6) and personal questions relating to the applicant’s relationship status (see Alesovski v Australian Aerospace Pty Ltd  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.
In Aldridge v Booth  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  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  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  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  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.
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.
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