What is Sexual Harassment? (NSW)

The Sex Discrimination Act 1984 (Cth) and the Anti-Discrimination Act 1977 (NSW) prohibit sexual harassment in the following areas of public life:

• In the course of your employment;
• In the course of obtaining goods and services e.g. from shops, medical services, government services etc;
• In the course of obtaining an education in public school, college or university;
• In the course of renting accommodation of any kind;
• In the course of buying or selling real estate;
• In the course of participating in sport; and
• In the course of administration of New South Wales laws and programs.

What constitutes sexual harassment?

Sexual harassment is when a person makes an unwanted sexual advance or an unwelcome request for sexual favours or any other unwelcome conduct of a sexual nature to another person in circumstances where a reasonable person in the circumstances would have anticipated the possibility that the second person would feel offended, humiliated or intimidated.

It is important to note that behaviour can constitute harassment in circumstances where the harasser may not believe the conduct to be offensive, humiliating or intimidating. Sexual harassment is any conduct which a reasonable person in the circumstances of the recipient would anticipate being offensive, humiliating or intimidating.

There are various behaviours that can constitute sexual harassment, including, but not limited to:

• Staring or leering in a sexual manner
• Wolf-whistling
• Comments about a person’s physical appearance or sexual characteristics
• Sexual or physical contact, including, stroking, touching, slapping, kissing, hugging, massaging, licking etc.
• Disseminating sexual material, e.g. placing a sexual photo on a noticeboard or via email
• Repeated unwanted sexual invitations
• Initiating ceremonies involving unwelcome sexually related behaviour
• Intrusive questions about sexual activity
• Sexual assault or indecent assault (also crimes under the Crimes Act)

Examples

Jim is the manager of a bar where Penny works. Jim instructs Penny to “Show off the twins (referring to her breasts), it will get us more tips.” Jim does not see anything wrong with the request, stating, “It’s just a compliment.” Jim’s behaviour is sexual harassment.

Bobby just started his carpentry apprenticeship, working for Tim. Tim tells Bobby, “Before we give you your paycheck, you have to do a nudie (naked) run around the site.” Tim’s behaviour is sexual harassment.

Elizabeth works with Ray at a real estate agency. Elizabeth is in a long-term relationship with Jane. Ray says to Elizabeth, “If you’re ever looking for real sex, you know where to find me.” Ray’s behaviour is sexual harassment.

What are my options?

Take note

It is important to keep a record of sexual harassment particularly when it occurs in the workplace, including, the date the incident/s occurred, who the harasser was, what words or actions were said/undertaken and the names and details of any persons who witnessed the conduct.

Know your rights

If you have experienced conduct that makes you uncomfortable, but are unsure as to whether it constitutes sexual harassment, there are a number of bodies that can provide further information, including:

• Anti-Discrimination Board of NSW
• Australian Human Rights Commission

The above bodies CANNOT provide legal advice.

If harassment occurs in the course of your employment, while you are receiving an education or while you are obtaining goods and services, it may be the case that the organisation responsible has a sexual harassment policy for you to refer in order to understand your rights.

Should I talk to the person harassing me?

In some situations, you may be able to prevent further harassment by approaching the harasser and explaining to them their behaviour is offensive, humiliating or intimidating and it is unwanted.

Can I report it?

In the event sexual harassment occurs in the workplace, your employer ought to have a policy specific to the issue. It is your decision to make a formal or informal complaint. Reports of this nature ought to be reported to the relevant Human Resources Department.

In the event sexual harassment occurs elsewhere in the community, for example, whilst you are playing sport, a report can be directed to the organisational body managing the activity.

What if the organisation ignores my complaint?

If sexual harassment occurs and you have reported it to the relevant organisation or authority and your report is not addressed to your satisfaction, you may make a complaint to the Anti-Discrimination Board of New South Wales. Your complaint must be in writing and made within 12 months of the conduct occurring.

Alternatively, you may make a complaint to the Australian Human Rights Commission. You may only make a complaint to either the state authority or the federal authority, not BOTH.  A complaint to the Australian Human Rights Commission must be made in writing.

It is always a good idea to obtain legal advice to ascertain whether a complaint at state or federal level is more appropriate.

What happens after I make a complaint?

Once a complaint is received by the relevant authority, it will be investigated with a view to resolving the issue. Typically, the complaint will be provided to the relevant authority to provide a response. If the complaint is not resolved after a response is received, your complaint may then lead to a conciliation conference.

If the complaint is still unresolved after a conciliation conference, you may elect for your complaint to be sent to a Tribunal for a legal decision to be made.

If you would like legal advice or assistance with a sexual harassment matter or with any other legal matter, please contact Go To Court Lawyers.

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