Sexual harassment is a pervasive issue in Australian workplaces. In recent years, community standards and conversations around workplace sexual harassment have evolved, particularly following the rise of the #MeToo movement, writes LAUREN GERONDAKIS, a lawyer with Gordon Legal.

However, alarmingly, this has not translated into any meaningful reduction in the prevalence of workplace sexual harassment. In 2012, the Australian Human Rights Commission (AHRC) conducted its third national survey on sexual harassment, reporting that one in five workers had experienced workplace sexual harassment in the preceding five years. By the time the AHRC conducted its fourth national survey in 2018, that statistic had climbed to one in three. This figure persisted in the fifth national survey conducted in 2022.

It is arguable that the statistical increase after 2012 is attributable to several factors, including the evolving parameters of these surveys and the definition of sexual harassment having broadened and become further nuanced over time. However, regardless of whether it is the prevalence of reporting, or the harassment itself that has increased, one thing is clear: workplace sexual harassment is a significant, enduring problem.

Workplace sexual harassment and other forms of discrimination are recognised as psychosocial hazards, from which both physical and psychological injury can arise. The impacts of sexual harassment are often substantial and can persist long after the harassment has stopped. Workers who have experienced workplace sexual harassment often report feeling unsafe in their workplaces and may prematurely depart a job, sustaining interruptions to their careers. Furthermore, many workers suffer significant injury such as psychological deterioration. As a result, their personal and professional lives can be fundamentally altered.

Given that so many workers experience workplace sexual harassment and suffer considerable psychosocial injury as a result, it is incumbent on employers to address the problem. This is not merely a moral or ethical imperative. Employers are legally obligated to identify and eliminate these workplace risks, just as they are with other types of occupational health and safety hazards.

What is sexual harassment?

Sexual harassment is any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature. It must be reasonably expected that the conduct may offend, humiliate or intimidate the recipient.

Courts and tribunals across Australia have interpreted sexual harassment broadly. Examples of what may constitute sexual harassment include inappropriate touching, sexualised comments or gestures. However, sexual harassment can take many forms, and the specific circumstances in which conduct occurs are often relevant. For example, in one case, a court held that sexually denigrating remarks, such as belittling comments about why the complainant was not sexually attractive to the perpetrator, and the displaying of pornographic material in common areas of the workplace each amounted to sexual harassment.

Courts have also acknowledged that conduct that is not patently sexual in nature may still amount to sexual harassment in certain circumstances. For example, in a case decided in 2012, the court considered the facts and held that the gifting of a jacket was not sexual harassment. However, it considered that in different circumstances, for example, where gift-giving was repeated, unsolicited or unwelcome, or where the gifts were of a certain intimate nature, gift-giving could amount to sexual harassment. In fact, a Justice of the NSW Supreme Court has cautioned that “the sexualisation of women in the workplace often isn’t [explicit]. Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome.” “The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries.”

It is also important to note that anyone can fall victim to sexual harassment. Whilst statistics show that most victim-survivors of workplace sexual harassment identify as women, the AHRC fifth national survey reported that 26% of male survey participants and 67% of non-binary survey participants had experienced workplace sexual harassment.

Sexual harassment is about the abuse of power. The workplace environment, where not properly managed, can incubate these abuses of power. Perhaps the reason why workplaces are such a common environment for sexual harassment to occur is because of the inherent vulnerability of workers in the workplace setting. To maintain their livelihoods, workers must dutifully attend work at the time, place and in the company of whomever the employer dictates. They must faithfully serve their employer. Failing to do so, or ‘rocking the boat’, can risk their livelihood. Unscrupulous individuals take advantage of a worker’s limited agency.

This places employers in a special position. Employers are both obligated and uniquely able to protect workers from these psychosocial hazards.

Recent developments in workplace sexual harassment legislation

In recent years there have been various major developments across Australia pertaining to the issue of workplace sexual harassment. State and federal legislation is responding to changing community standards and to the pervasiveness of the problem.

In 2020, the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report was published. The Respect@Work report was the culmination of surveys, research and public consultation. The Respect@Work report made 55 recommendations for legislative and public policy reform, some of which have since been implemented into legislation and are now legally binding.

More recently in 2021, the Victorian Government established the Ministerial Taskforce on Workplace Sexual Harassment. The Taskforce made 26 recommendations for reform, including that WorkSafe’s funding and capacity be increased to better regulate workplace sexual harassment and for further powers to be given to WorkSafe’s psychosocial inspectorate.

Furthermore, in August and September 2024, the Victorian Government conducted consultation regarding proposed legislative reforms to restrict the use of non-disclosure agreements in workplace sexual harassment settlements. This pending reform comes in response to evidence of the prevalence of workplace sexual harassment ‘cover-ups’ and the systemic nature of the problem in many Australian workplaces.

Additionally, in 2022, the Queensland Human Rights Commission published its Building Belonging report. In response, the Queensland government has recently passed a bill to amend and strengthen existing anti-discriminationlegislation.

Change is happening across the country. Employers must adapt and respond to these changes to ensure legal compliance. Employers and individuals alike have a responsibility to ensure workplaces are safe, respectful and free from psychosocial hazards.

Employers’ obligations – the ‘positive duty’

In Australia, employers have legal obligations to ensure they proactively address the cultural sources of workplace sexual harassment and take positive steps to prevent it from occurring. This is known as an employer’s ‘positive duty’.

The Victorian Government was the first in Australia to introduce a positive duty to prevent discrimination in 2010. Multiple other states and territories have since followed suit.

Following the Respect@Work recommendations, the federal government introduced a positive duty into the federal Sex Discrimination Act that binds employers across the country, requiring them to prevent workplace sex discrimination and sexual harassment. All employers are bound by the federal positive duty, regardless of whether a state positive duty also applies in an employer’s area of operation.

In essence, the positive duty is about identifying risks and proactively implementing safeguards at the workplace level. This can include implementing policies, procedures and internal monitoring strategies and facilitating training. Ultimately, the nature, extent and appropriateness of any positive steps depends on the workplace and its associated hazards.

Authorities such as the AHRC have investigative powers and can legally enforce compliance with the positive duty.

These authorities provide resources to assist employers to comply with the positive duty. For example, the AHRC publishes numerous online resources and training modules. For employers operating in Victoria, the Victorian Equal Opportunity and Human Rights Commission also provides tailored organisational and compliance reviews.

Employers must remember that they are concurrently subject to occupational health and safety laws. These laws also require employers to maintain safe workplaces by eliminating psychosocial hazards.

Workplace sexual harassment is unlawful

If workplace sexual harassment does occur, both perpetrators and employers may be held legally liable.

Employers may be held vicariously liable for a perpetrator’s actions if the conduct is found to be sufficiently connected to their work. For example, under the Victorian Equal Opportunity Act the question is whether the conduct occurred “in the course of employment”. Under the federal Sex Discrimination Act the test is articulated as whether the harassment occurred “in connection with the employment of the employee”. It is safe to say that regardless of the specific legislation, vicarious liability has been interpreted liberally across Australia. Conduct does not necessarily need to occur within the traditional parameters of the ‘9-5’ or at the ‘bricks and mortar’ work site. For example, courts have previously held employers vicariously liable for sexual harassment occurring in shared accommodation necessitated by a work-related trip or conference. So too where conduct has occurred at work social events. Employers should consider the totality of the employment relationship and risks arising from new technology and social media.

However, employers are not automatically held liable for the actions of their workers. If an employer can show that it took steps and precautions to prevent harassment from occurring, it may be able to defend a claim of vicarious liability. The extent of any reasonable steps or precautions varies depending on the relevant legislation. However, mere ignorance of the conduct is insufficient. An employer must be able to demonstrate that it has taken tangible steps to try to prevent such conduct from occurring, for example, having implemented workplace policies and procedures, having conducted workplace sexual harassment training or having appropriately managed any prior complaints of sexual harassment.

A demonstrated commitment to the positive duty obligations is likely to substantially reduce an employer’s risk of vicarious liability.

Intersection of workplace sexual harassment with other areas of law

Civil sexual harassment matters often intersect with other areas of law, such as employment law, personal injury law and even criminal law.

It is common for sexual harassment complainants to make a workers compensation claim. This is because many workers who have experienced workplace sexual harassment suffer psychological injury which renders them unfit for work. Having an accepted workers compensation claim does not preclude a complainant from also bringing civil sexual harassment proceedings against a perpetrator and/or employer. Whilst workers compensation and any statutory payments are considered, complainants are nevertheless permitted to bring a civil sexual harassment claim to pursue compensation for additional loss and damage.

In recent years, damages awarded in civil sexual harassment claims have significantly increased. Courts have responded to prevailing community standards regarding the unacceptable and harmful nature of sexual harassment. The 2014 case Richardson v Oracle signified a turning point in the Australian civil sexual harassment landscape. On appeal, the Federal Court increased damages awarded to the complainant from $18,000 to $130,000. In doing so, the court adopted a similar approach to the issue of “pain… suffering and loss of enjoyment of life” as has been long established in personal injury cases. Since then, courts have recognised sexual harassment as a serious and harmful form of compensable injury.

Ultimately, employers should be aware that workplace sexual harassment can give rise to a multiplicity of legal issues and liabilities.

How employers must respond

Workplace sexual harassment is a serious problem in Australian workplaces. Sexual harassment can cause significant psychosocial harm to workers and bring substantial legal liability for employers. To avoid those liabilities, employers must focus on hazard identification and proactive changes at the workplace level.