Sexual harassment has received a lot of media attention in recent months. Managing cases in the workplace can be challenging. Avant’s SONYA BLACK explains what it is and employers’ legal obligations.
Chloe has just started working as an optometrist in an exclusive city practice owned by Fred.
Fred asks his senior optometrist, Barry, to mentor Chloe.
During his initial meeting with Chloe, Barry makes suggestive comments, including: “You, my dear, have the most beautiful figure” and “I cannot believe that a woman like you doesn’t have a husband.”
Chloe laughs off the comments. But, gradually, Barry starts to make lewd jokes.
Chloe finds Barry’s jokes offensive but doesn’t want to create a fuss given she just started in the business.
Barry starts sending Chloe text messages outside work hours, including: “I can’t stop thinking about you”, “What are you doing tonight?” and “Fancy a drink?”.
Chloe reports Barry’s behaviour to Fred.
Fred dismisses her concerns and says, “Oh, don’t worry about Barry. He’s a good guy but sometimes he takes things too far. Just ignore him.”
What is sexual harassment?
Under Australian law, sexual harassment is conduct that needs to meet three elements. It must be:
- Unwelcome.
- Of a sexual nature.
- That a reasonable person (aware of the circumstances) would anticipate it could possibly make the person experiencing the conduct feel offended, humiliated or intimidated.
Sexual harassment is unlawful under discrimination legislation in areas including employment, service delivery, accommodation and education.
In certain circumstances, sexual harassment may be a criminal offence.
Sexual harassment laws do not prevent workplace relationships based on mutual attraction or consensual behaviour.
What about Barry’s behaviour?
1. Was Barry’s behaviour unwelcome? This will depend on how Chloe perceived Barry’s behaviour. It is clear from the scenario that Chloe did not welcome the comments, jokes and texts even if she laughed off the initial comments.
The first element has been met. It is irrelevant that Barry’s behaviour may have been fine with other people in the business (such as Fred) or was an accepted feature of the workplace in the past.
2. Was Barry’s conduct of a sexual nature? Under Australian law, conduct of a sexual nature includes:
- Making an unwelcome sexual advance or request for sexual favours.
- Engaging in other unwelcome conduct of a sexual nature (including making statements of a sexual nature to a person or in the presence of a person, whether verbally or in writing).
It can include physical and non-physical conduct, as well as in person or through social media. Some examples include:
- Staring, leering or unwelcome touching.
- Suggestive comments or jokes.
- Unwanted invitations to go out on dates or requests for sex.
- Intrusive questions about a person’s private life or body.
- Unnecessary familiarity, like deliberately brushing up against a person.
- Emailing pornography or rude jokes.
- Displaying images of a sexual nature around the workplace.
Barry’s behaviour falls into the category of conduct of a sexual nature, so the second element has been met.
3. Would a reasonable person consider Barry’s conduct could have offended, humiliated or intimidated Chloe?
Unwelcome conduct of a sexual nature will constitute sexual harassment if a reasonable person who was aware of the circumstances would anticipate the possibility that the recipient would feel offended, humiliated or intimidated. It doesn’t matter that Barry may not have intended to offend, humiliate or intimidate Chloe.
Barry’s behaviour will constitute workplace sexual harassment even though he sent texts to Chloe’s personal mobile phone from his personal mobile phone. Once again, Barry’s behaviour ticks the sexual harassment boxes so now all three elements have been met.
Could Fred, the employer, be liable?
Yes. An employer can be liable for sexual harassment if they have not taken appropriate steps to eliminate or minimise the risk of sexual harassment.
These steps include:
- Undertaking a risk assessment.
- Developing a clear policy.
- Training staff.
- Ensuring compliance with the policy.
- Developing a process for managing complaints.
Fred can find further information in the Australian Human Rights Commission’s Ending workplace sexual harassment: a resource for small, medium and large employers and Sexual Harassment: Know where the line is. He should also refer to Safe Work Australia’s Preventing workplace sexual harassment: national guidance material.
Ultimately, Fred needs to take Chloe’s complaint seriously, investigate and take appropriate action depending on the findings. He should protect Chloe by appointing another mentor and rostering Barry and Chloe separately (if possible) until the investigation is complete.
Fred can also call his medical defence organisation for specific advice.
ABOUT THE AUTHOR: Sonya Black is Avant’s Special Counsel, Employment. With over 20 years’ experience as an employment lawyer, she advises doctors and medical practices across Australia on a broad range of employment issues.
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