Sexual harassment, in any shape or form, is completely unacceptable. It doesn’t matter if it’s on the street, in a bar, at home, or in the workplace; everyone has the right to be safe and free from harassment and bullying.
But statistics prove we’ve still got a long way to go in Australia, with the Human Rights Commission's most recent national survey finding more than 40% of women and 26% men have experienced workplace sexual harassment in the past 5 years and 1 in 5 employees in the previous 12 months.
Under the Fair Work Act, sexual harassment in the workplace is prohibited and the employer or organisation could be found liable for sexual harassment unless they can prove that they took all reasonable steps to prevent it occuring.
So it is essential for all Australian businesses to take sexual harassment seriously and to do all they can to create a safe working environment for their employees and other stakeholders.
We’ve created this blog post to help understand and prevent sexual harassment, your legal obligations as an employer or business owner, and how to protect and support every person in your workforce.
As Australia’s Sex Discrimination Commissioner said: sexual harrasment is a societal issue, “which every Australian, and every Australian workplace, can contribute to addressing. Workplace sexual harassment is not inevitable. It is not acceptable. It is preventable.”
The Australian Human Rights Commission defines sexual harassment as “any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated.”
The Sex Discrimination Act 1984 further defines sexual harassment as when a person makes an unwelcome sexual advance, an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature in relation to the person harassed.
Sexual harassment doesn’t have to be explicit; it can be subtle or implied, but it is crucial to understand that the perpetrator’s intentions are irrelevant to whether their behaviour caused harm to the victim.
Despite these clear definitions, what people consider sexual harassment may differ, which can make reporting difficult in some cases. However, all organisations have a duty to prevent sexual harassment, provide a safe environment for their employees, and to address any instances of unacceptable behaviour.
One-off or repeated, unwanted offensive sexual behaviour can take many forms. It’s important that employers are aware of the ways sexual harassment can manifest in the workplace, so they can put systems in place to address it.
This list is not exhaustive. Keep in mind, sexual harassment can be overt or subtle, and a person can experience sexual harassment by witnessing this type of behaviour in their work environment.
It’s your responsibility as an employer to do what you can to mitigate the opportunity for it to appear, and to address it decisively if it does.
There are several pieces of legislation that cover employers’ obligations:
The Act was amended in 2023 to explicitly prohibit sexual harassment in the workplace and shift the legal responsibility onto employers to prevent it. The protection applies to workers including employees, contractors, work experience students and volunteers, future workers (so, the recruitment process), and people conducting a business or undertaking.
A person or company can be liable for sexual harassment committed by an employee (or agent in connection with work), unless they can prove that they took all reasonable steps to prevent it.
The changes also expanded the Fair Work Commission’s powers to deal with sexual harassment complaints and disputes, including the power to arbitrate disputes.
Find out more about your obligations at fairwork.gov.au.
Sexual harassment is unlawful in employment situations, educational institutions, and the provision of goods, services, and accommodation. Under the Sex Discrimination Act, organisations and businesses have a positive duty to eliminate, as far as possible, sexual harassment, sex-based harassment, or discrimination on the grounds of sex in connection with work.
The Human Rights Commission has the power to enforce compliance with the positive duty.
Find out more at humanrights.gov.au.
Anyone conducting a business or undertaking is required to eliminate or minimise the risk of sexual harassment in the workplace, so far as is reasonably practicable. Penalties for failing to meet these duties include fines and, potentially, jail terms.
Safe Work Australia has more detail about your WHS obligations.
Organisations also need to comply with the regulations around workplace sexual harassment of their state or territory. For example, every employer in Queensland is legally required to proactively identify and manage risks of sexual harassment and sex or gender-based harassment at work, implement preventive measures, and have a prevention plan (that is regularly reviewed).
One of the key insights from the Respect@Work: Sexual Harassment National Inquiry Report is that leadership plays a critical role in setting workplace culture and creating long-term change in addressing work-related sexual harassment and sex discrimination.
With the onus on employers to stop sexual harassment before it starts, leaders and managers need to be proactive in understanding and promoting expectations of a safe and respectful workplace. They also need to walk the walk and model appropriate behaviour.
Sexual harassment not only harms your staff - increasing absenteeism, presenteeism and turnover, decreasing morale, and reducing productivity - it damages the whole business (sexual harassment is estimated to cost the Australian economy more than $3.8 billion a year).
Even if you don’t think sexual harassment is happening, or you haven’t found evidence of it, you should still have systems in place to deal with it.
That means creating written policies and guides that clearly define:
Make these living documents by keeping them up-to-date and making sure all employees read and understand them.
Respect@Work has resources to help understand, prevent, and address workplace sexual harassment.
Sexual harassment is traumatic and known to cause of physical and psychological harm, so permitting or overlooking it puts your workers and business at real risk.
Aside from the obvious legal liabilities, not doing anything about it or not responding appropriately could lead people to think there is a wider culture of permissiveness, which can seriously affect employee morale and productivity, damage your reputation, and can lead to absenteeism, resignations, and discrimination claims.
Part of your work health and safety obligations is to assess and mitigate, as far as is reasonably practicable, the risks arising from sexual harassment.
Certain factors can put workers at greater risk of sexual harassment, including:
Look to build a clear picture of your team and what is happening on the front line using a variety of indicators and assessments, e.g. rates of absenteeism or resignations, discussions with your health and safety rep(s), conducting exit interviews. Don’t overlook any digital or online environments that your workers use.
If you identify risks, you are obligated to work with your people on actions to eliminate or minimise them. External assistance from trained professionals could really help.
As with any concern or problem, early identification, reporting, and response means incidents and issues are more likely to be resolved rather than being allowed to worsen.
Workers need to have the confidence and support to speak up without fear of inaction or retaliation, so they raise concerns rather than waiting until the behaviour gets to such a level that they need to make a formal complaint. By then, their (and their co-workers’) wellbeing may be so affected, they are no longer effective or want to continue in the job.
Sexual harassment can be hard to identify and talk about, so ensure all your people are able to recognise it and know what to do if they experience or see it. This includes knowing where to go for resources and support.
Providing prevention training will help your team members spot problematic behaviour early and to effectively deal with it, such as learning about active bystanding techniques.
Ensure your organisation provides support to individuals who experience or are affected by harassment. If you don’t have an EAP, you should consider it.
It’s not enough to create policies that sit in a folder or drawer somewhere. To prevent sexual harassment in your workplace, you need to continually audit and review your organisation’s systems, policies, processes, and culture.
You should also regularly gather employee feedback to better understand the prevalence and impact of sexual harassment. Workplace Gender Equality Agency (WGEA) reporting on workplace prevention and response to sexual harassment in 2024 found nearly 99% of employers have a formal policy on work-related sexual harassment and discrimination. However, more than 1 in 4 employers (28%) are not monitoring how prevalent it is.
If you need help auditing your workplace systems or if your self-audit identifies a problem that you need to modify, reach out to experts for help.
Your workplace environment and company culture plays a significant role in changing behaviour and preventing sexual harassment. There are many parts required to make up the whole, so look at a wide range of actions from raising awareness of the problem (and how it can be changed) to increasing diversity in your team and empowering all workers.
The company expectations and processes around sexual harassment should be a core component of onboarding for new employees, with refreshers for the whole team scheduled at key milestones, e.g. annually.
Staff safety and wellbeing needs to be a realistic and ongoing priority, not just a box-ticking exercise.
If you or anyone you know is experiencing sexual harassment, support is available:
You can also contact police regarding any sexual harassment, sexual assault, or bullying that may involve criminal conduct.