What Actually Counts as Sexual Harassment?

Welcome to Know Your Rights, a new series from VICE Australia explaining the complicated legal stuff that makes life hard when you don't know the law

Over one in two Australian women, and one in four Australian men, have experienced sexual harassment in their lifetime. And of these numbers, one in five has been sexually harassed at work. If those statistics don’t speak for themselves, then the stories that have followed Harvey Weinstein and the re-invigoration of the #Metoo campaign emphasise how sexual harassment is real and incredibly common.

Just last month the Australian Human Rights Commission, which is Australia’s leading body for anti-discrimination and human rights, announced a world-first National Inquiry into Sexual Harassment at Australian workplaces. It’s a big sign that the occurrence of sexual harassment is growing and needs combatting.

But despite growing awareness of the issue, it’s still common to hear of people struggling to identify whether they've been sexual harassed, or whether they've just experienced a shitty but otherwise lawful interaction. Compounding this confusion is the other common excuse about "workplace culture," and poor HR practices that fail to recognise employee reports.

So let's sort out the fact from the fiction…

The test for what’s sexual harassment is clear and it’s broader than criminal behaviour. Sexual harassment has been unlawful in Australia for over 30 years under the Sex Discrimination Act 1984 (Cth). There are also protections against sexual harassment in seperate States and Territories.

Sexual harassment is essentially any unwelcome conduct of a sexual nature in a public area of life such as your workplace, your education, your accommodation, and any place you’re receiving goods or services.

Sexual harassment may include behaviour that may also be a criminal offence (such as sexual assault or indecent exposure). But it also includes a range of different behaviours that are sexualised such as insults of a sexual nature, unnecessary familiarity, suggestive comments, displaying sexual screensavers or porn, sexual advances, or repeated unwanted requests for a date.

Yeah, so chances are those shitty experiences were probably sexual harassment.

The main thing you need to know about sexual harassment is that it doesn’t matter if the person harassing knew that they were being harmful or offensive. A common excuse you hear when someone is accused of sexual harassment is that they thought it was a joke or didn’t mean to offend anyone.

To this excuse, the law basically says too bad.

The test isn’t whether the person who is harassing you thinks the behaviour is okay or not. It’s whether a reasonable person would think the person being harassed would feel offended or humiliated.

So if a coworker can’t stop talking about their various sexual encounters and it makes you uncomfortable, it doesn’t matter they didn’t mean to offend. It’s about whether most people would rather not have to deal with this at work.

Sexual harassment is unlawful and victims of sexual harassment have several options available to them.

First off, you can raise a complaint in your workplace or any other environment about the behaviour you're experiencing. Remember, what you’re doing is lawful and within your rights.

But if your boss, or whoever else in charge, is the person harassing you or is constantly turning a blind eye to the behaviour, you can make an external complaint. Depending on where you live, you can either go to the Australian Human Rights Commission or alternatively to your local state or territory human rights commissions within six or 12 months of the conduct (again depending on where you live).

You can also make a complaint if it's outside these time limits; it’ll be up to the Commission if the complaint is accepted or not. As part of these complaints, you can seek the behaviour to stop, compensation for any money you’ve lost as a result of the behaviour and any hurt or humiliation you’ve suffered, and you can seek that your employer implement some training or policies so that it doesn’t happen again.

There have been some pretty high profile cases over the past five to 10 years in which Courts have said that not only is sexual harassment not okay, but the compensation handed to victims should be higher to sit with community expectations.

Lastly, if the behaviour involves physical assault, stalking, or sexual assault, you can bring a police complaint as your harasser may have committed a crime.

If you’re reading this and thinking about something that’s happened to you, it’s important you get some legal advice and access other relevant support services. A good starting point includes:

• Your state based legal aid commission such as Victoria Legal Aid or Legal Aid NSW
• The Australian Human Rights Commission
• The Victorian Equal Opportunity and Human Rights Commission
• 1800Respect - a phone counselling service that can provide 24 hours a day, 7 days a week counselling services

Please note: this information is only intended as a guide to the law and should not be used as a substitute for legal advice.