With an increasing number of formal complaints about workplace sexual harassment it’s worthwhile revisiting the definition of unlawful sexual harassment and pointing out 4 common misconceptions about sexual harassment. 

What is sexual harassment?

Sexual harassment is:

  • an unwelcome sexual advance
  • an unwelcome request for a sexual favour
  • other unwelcome conduct of a sexual nature in relation to the person harassed,

where a reasonable person having regard to all the circumstances would have anticipated that the person harassed would be offended, humiliated or intimidation.

Correcting common misconceptions

1.         A workplace isn’t just the office

A ‘workplace’ for the purpose of the definition of sexual harassment is a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.

A ‘workplace’ will include:

  • the office/s of the employer including areas that may be shared by other businesses like the lobby, bathrooms, kitchens and lifts
  • an external site where work is performed such as a client or supplier site or a worker’s home, and
  • the location of work related functions and, potentially, after work drinks/get togethers.

A related misconception is that it is only unlawful for employees to harass other employees of the same employer. It is unlawful to sexually harass any other workplace participant and this will include representatives of clients and suppliers and contractors or consultants.

2.         Statements made in the presence of a 3rd person can still constitute harassment of that 3rd person

Even if a statement of a sexual nature is made within a group or towards an individual, that statement may constitute unlawful sexual harassment of someone else who was in the presence of the group/the individual to whom the statement was directed.

For example, if a joke referring to intercourse or genitalia is made in a staffroom within a group, that statement may constitute unlawful sexual harassment of someone sitting in the staff room but not sitting with the group in which the joke was told.

3.         A harasser might not know something is unwelcome

For unlawful sexual harassment to exist the victim does not need to communicate at any time that the conduct was ‘unwelcome’. They may even participate in the conduct or at least appear to the harasser to enjoy or be amused or entertained by the conduct.

Following the example in 2. above, the telling of the joke may constitute unlawful sexual harassment of a member of the group even if the victim did not object to the joke and/or laughed at the joke.

It is worth noting also in this context that for something to be unwelcome it must merely be disagreeable to the victim.

4.         The ‘reasonable’ person who anticipates if the victim would be offended, humiliated or intimidated is not necessarily the harasser or another worker at that workplace

When asking whether it should be anticipated that someone would be offended, humiliated or intimidated by conduct, the question is not whether the harasser or someone else who works with the harasser thinks the conduct may be acceptable or not but whether a ‘reasonable’ person in our society would so anticipate. The perceptions of the harasser are irrelevant.

Our ‘reasonable’ person’s perceptions change as our society and its culture changes. In Australia the category of behaviour that is reasonable in the context of sexual harassment is increasingly narrow such that the prudent workplace participant is best advised to avoid any conduct of a sexual nature in a work context wherever the location.