Sexual harassment is a systemic and costly harm to individuals and organisations that is unrestrained and largely hidden. Motivated by the #MeToo movement, there is global momentum to ensure workplaces are safe and free from sexual harassment and gender-based discrimination.
Sexual harassment should not be seen as only an individual problem. It has causes and consequences at an organisational level. Employers are being called on by regulators, workers, investors, customers, and the wider community to prevent and address workplace sexual harassment.
Locally, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) strengthens the legal and regulatory frameworks relating to sex discrimination and shifts the system to focus more on preventative efforts to eliminate sexual harassment in Australian workplaces. The key reform is the introduction of a positive duty in the Sex Discrimination Act 1984 (Cth) requiring employers to take reasonable and proportionate measures to eliminate certain forms of unlawful sex discrimination, including sexual harassment, as far as possible.
Understanding Sexual Harassment
Sexual harassment is any unwelcome conduct of a sexual nature that a reasonable person would anticipate causing offence, humiliation or intimidation. It can be jokes, unwelcome touching, sexual gestures, sexual images, displaying pictures or posters, objectifying women, repeated propositioning, intrusive questions about one’s private life, sharing intimate images, requests or pressure for sex or sexual acts, stalking, leering, actual or attempted sexual assault, or rape.
Sexual harassment can be delivered in-person or electronically, at workplaces and in contexts related to work. It may be perpetrated by an employer, supervisor, co-worker, client, contractor, customer, or member of the public. It can be a one-off or an isolated incident. In some circumstances, a working environment that is sexually permeated or hostile will amount to sexual harassment. Also, behaviour that while not directed at a particular person, affects someone who is exposed to it or witnesses it, can be sexual harassment.
Consensual sexual relations, advances, or flirtations in the workplace are not a form of sexual harassment because they are not unwelcome. However, workplace interactions may become problematic when a consensual relationship breaks down or if there is a power imbalance.
Although overt forms of sexual harassment are not tolerated in many workplaces, subtle forms of sexual harassment such as sexist remarks, sexist jokes, and crude language may not be perceived as harmful and addressed. However, subtle forms of sexual harassment may be as harmful as more overt forms and contribute to an environment where more serious forms of sexual harassment or assault are more likely.
Sexual harassment is a form of discrimination or violence against someone because of their sex, gender or sexual orientation that severely impairs equal employment opportunities. It is unlawful in Australia, and some forms of sexual harassment may be criminal (e.g., indecent exposure, stalking, sexual assault, rape and obscene or threatening communications).
Prevalence
Although sexual harassment is unlawful in many jurisdictions, it is pervasive across the globe. In Australia, an anonymous survey by the Australian High Rights Commission (AHRC) in 2022[1] reported eighty-nine per cent of Australian women, and sixty-four per cent of Australian men have been sexually harassed in their workplace at some point in their lives, and two in five women and one in four men have experienced sexual harassment in the workplace in the last five years.
The AHRC survey reported sexual harassment is more commonly experienced by women, younger workers, people with a disability, people who identify as non-binary or trans, men and women with diverse sexuality, low-income and insecure workers, and members of minority racial, ethnic, and cultural groups including Aboriginal or Torres Strait Islander workers. These attributes can combine (intersect) and increase a person’s vulnerability. They can also make workers less likely to report sexual harassment.
In 77 per cent of cases, survey respondents reported one or more of the perpetrators were male.
Reporting
Evidence suggests that most victims choose not to disclose their experience to employers or seek help because of:
- Fears of loss of job or other form of retaliation
- Beliefs that the behaviour is not serious
- Concerns of not being taken seriously or being labelled as overly sensitive
- Not wanting the perpetrator to get in trouble
- Reluctance to be seen as a victim due to social stigma and discrimination
- Lack of awareness of, or confidence in reporting systems, including beliefs that nothing will be done
- Lack of support services that address the needs and expectations of victims
In Australia, less than one in five victims of workplace sexual harassment report through formal channels.[2] Underreporting is a significant concern because harmful behaviour remains hidden and is not sanctioned, which serves to tacitly condone the behaviour, embolden perpetrators, and perpetuate harm.
Cause
Although referring to behaviour that is sexual in nature, sexual harassment is not about consensual sexual relations and sexual attraction; rather, it is a gross violation of human rights that represents an abuse of power.
In the workplace, power dynamics are associated with a person’s rank, tenure, or value to a business. For example, the owner of a business, a valued customer, a direct supervisor, or a person otherwise in a position to influence that person’s work environment or future career prospects might have power over others.
Gender and other diversity imbalances in workforces can also create power imbalances. For example, women workers in professions or environments dominated by men across the workforce or in senior roles. Also, temporary workers hired on short-term contracts or subcontract basis have less job security, limited bargaining powers and rights, and lower wages.
The key driver of sexual harassment is gender inequality. Gender inequality involves social norms and practices that reinforce power imbalances between men and women, including environments where power, opportunities and resources are not shared equally between men and women and where disrespect towards women is tolerated, ambiguous, or even supported. Casual sexism perpetuates gender inequality and can lead to more serious issues.
Gender inequality intersects with other forms of structural and systemic discrimination, inequality, and injustice such that sexual harassment and other forms of gender-based discrimination disproportionately influence members of minority groups. Social norms that endorse women as inferior to men are also linked to heteronormative[3], racist, ableist and other discriminatory beliefs and behaviours.
Because sexual harassment is rooted in social norms and practices, eradicating it from workplaces is not simply about addressing the behaviour of individual perpetrators. Rather, eliminating sexual harassment requires cultural and structural change.
Impact
Sexual harassment, whatever form it takes, causes significant harm that can be felt immediately, emerge over time, and result in long-term trauma. The impacts are personal, varied, and deeply affecting. Sexual harassment can lead to:
- feelings of isolation, social isolation, marital/relationship breakdowns, or family dislocation
- loss of confidence and self-esteem
- physical injuries as a result of assault
- stress, depression, anxiety, and post-traumatic stress disorder (PTSD)
- physical illness such as cardiovascular disease, musculoskeletal disorders, immune deficiency and gastrointestinal disorders e.g., as a result of stress
- sleep disturbances
- substance abuse
- negative impacts on a person’s job or career and financial outcomes,
- suicidal thoughts.
The harm caused by sexual harassment extends to families, people who witness incidents and people within and outside of organisations who support those impacted, respond to or manage the behaviour.
Sexual harassment not only harms individuals. It is a financially material risk for employers because it negatively impacts legal risk, productivity, profitability, safety, culture, reputation, and the ability of a company to attract and retain talent. The economic costs of sexual harassment in the workplace to the Australian economy in 2019 were estimated at $3.8 billion through lost productivity, staff turnover, absenteeism, and other associated impacts[4]. Most of these costs were borne by employers.
Legislative Context
In December 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) amended the Sex Discrimination Act 1984 (Cth), introducing a positive duty on employers and persons conducting a business or undertaking (PCBUs) to take proactive and meaningful action to eliminate:
- workplace sexual harassment, sex discrimination, and sex-based harassment;
- conduct that amounts to subjecting a person to a hostile workplace environment on the grounds of sex; and
- certain acts of victimisation.
The positive duty was a key recommendation of the Commission’s landmark Respect@Work Report[5], led by Sex Discrimination Commissioner Kate Jenkins, published in March 2020.
This change requires employers and PCBUs to shift their focus to actively preventing workplace sex harassment and discrimination, rather than responding only after it occurs.
New regulatory powers have been conferred on the AHRC to investigate and enforce compliance with the positive duty. Recognising that employers and PCBUs will need time to make changes to ensure that they comply with their new legal obligations, the Commission’s compliance powers will commence in December 2023.
In addition to the positive duty, there are different legal responsibilities for different people in the workplace:
- At the national level, sexual harassment is unlawful under the Sex Discrimination Act 1984 (Cth). Sexual harassment is also prohibited by state and territory anti-discrimination laws. Under anti-discrimination legislation, a person who commits workplace sexual harassment can be held personally liable. Employers can also be held liable for workplace sexual harassment by their employees unless they can show that they have taken ‘all reasonable steps’ to prevent the sexual harassment from occurring.
- State and territory Work, Health and Safety (WHS) laws place responsibilities on organisations, workers and others in a workplace to take steps to prevent and address sexual harassment:- PCBUs (persons conducting a business or undertaking), such as employers, have a responsibility to do everything they reasonably can to make sure the workplace is safe. This includes taking action to prevent, and respond to, workplace sexual harassment and should involve consulting with health and safety representatives (HSRs), workers, and third parties with whom they do business or share premises about sexual harassment, and providing relevant training and other educational resources to workers.- Officers (key decision makers) must exercise due diligence to ensure that the organisation complies with WHS obligations. This includes taking reasonable steps to ensure the business or undertaking has and uses appropriate resources and processes to eliminate or minimise risks of sexual harassment.- Workers are responsible for taking reasonable care of their own health and safety while at work, and not negatively impacting the health and safety of others. This includes not sexually harassing others and following reasonable policies and procedures given by their employers, including policies and procedures to prevent and respond to sexual harassment.- Others in the workplace (including customers, clients, and patients) are also responsible for taking reasonable care of their own health and safety, and not negatively impacting the health and safety of others. This includes not sexually harassing others and following reasonable instructions relating to health and safety.
Employers and individuals who do not comply with their obligations may face financial penalties and/or jail time.
Note: The information and opinions contained in this article are provided as of the date of the article and are subject to change without notice. The information provided constitutes general information only and does not constitute legal, accounting, or other professional advice. It is provided for general information purposes only current at the time of first publication.
[1] Time for respect: Fifth national survey on sexual harassment in Australian workplaces, AHRC 2022.
[2] Time for respect: Fifth national survey on sexual harassment in Australian workplaces, AHRC 2022.
[3]Heteronormative beliefs and attitudes endorse heterosexuality as the normal or preferred sexual orientation and that people’s preferred gender identity is the one they are born with (cisgender). Individuals who are not heterosexual or cisgender are perceived as abnormal or deviant.
[4]The economic costs of sexual harassment in the workplace, Deloitte Access Economics, 2019
[5] Respect@Work: Sexual Harassment National Inquiry Report, AHRC 2020