Sexual harassment is defined in the Sex Discrimination Act 1984 (Cth) (SD Act) as: 'any unwelcome conduct of a sexual nature that a reasonable person, having regard to all the circumstances would have anticipated would offend, humiliate or intimidate the other person.' Similar definitions are found in State and Territory anti-discrimination and equal opportunity legislation.
This means that sexual harassment will occur when:
- a person makes an unwelcome sexual advance or an unwelcome request for sexual favours, to the person harassed; or
- engages in other unwelcome conduct of a sexual nature in relation to the person harassed.
Depending on the circumstances, the following kinds of behaviour may be deemed sexual harassment:
- jokes or cartoons about someone's appearance, body shape, or any of the personal matter that may cause embarrassment and make people feel uncomfortable
- sexual or physical contact such as putting your arm around someone, slapping them, kissing, touching or patting them
- staring or leering in a sexual manner (looking someone up and down)
- standing too close to someone or brushing him or her as you walk past
- verbal abuse or comments that put down or stereotype people because of their sex, appearance or sexual preference. These gestures may not need to be obviously crude for the behaviour to be deemed sexual harassment
- offensive gestures and "wolf" whistling
- displaying in the workplace or in personal belongings material that is sexist, sexually explicit or homophobic (anti-gay). This includes offensive e-mails, screensavers or computer 'wallpaper'
- repeated sexual invitations when the person invited has refused similar invitations before
- intrusive questions or remarks about a person's sexual activities or private life
Conduct must be 'unwelcome'
Conduct will only be sexual harassment if it is 'unwelcome'. Consensual conduct will not be 'unwelcome'.
Intention is irrelevant
You don't need to intend to offend, humiliate or intimidate, or even to know that this was the effect of your behaviour for this conduct to be sexual harassment. For example, a practical joke that 'everyone else thinks is funny' can amount to sexual harassment of somebody else who finds it offensive.
OTHER FORMS OF HARASSMENT
Discriminatory harassment and victimisation due to making a complaint are unlawful and amount to discrimination under Federal and State anti-discrimination law. Discriminatory harassment means behaviour directed to another person (or group of persons) in the workplace that subjects them to a detriment because of their attribute.
For example, Section 35 of the Disability Discrimination Act 1992 (Cth) prohibits disability harassment in work, although this is not defined.
Harassment on other grounds can also constitute discrimination as it will generally constitute less favourable treatment of an employee or potential employee because of a protected trait, e.g. race or age.
Types of behaviour which constitute discriminatory harassment include, but are not limited to, any violent or threatening physical or verbal outburst or abuse, sarcastic or derogatory comments or actions which undermine, demean, belittle or humiliate an individual or group or their ability or intelligence, yelling, screaming, swearing or similar behaviour aimed at intimidating, frightening, coercing or offending those at whom it is directed.
For more information on sexual harassment, please see our:
Frequently asked questions
Bullying and harassment