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Despite the #MeToo movement casting a much-needed light on the problem of sexual harassment at work, unwanted or unwelcome sexual behaviour in Australian workplaces is still very common.
One in four women has experienced sexual harassment at work, and sexual harassment of men, by men, is also on the rise. Nearly one in five complaints received by the Australian Human Rights Commission under the Sex Discrimination Act relates to sexual harassment.
Despite its prevalence, sexual harassment is significantly underreported. Many victims either don’t realise what they’ve experienced is harassment or haven’t known where to turn to report it.
What is considered sexual harassment?
According to the Australian Human Rights Commission, sexual harassment refers to any unwanted or unwelcome sexual behaviour such as:
- Staring or leering
- Unwelcome touching
- Suggestive comments or jokes
- Sexual insults or taunts
- Questions or comments about one’s sex life
- Displaying sexual content publicly such as posters or websites
- Sending sexually explicit content via email or text
- Requests for sex
- Repeated and unwelcome advances to go on dates
- Unwelcome advances via social media
- Physical assault, sexual assault, indecent exposure, stalking or obscene communications
Sexual harassment is unlawful under the Sex Discrimination Act 1984 (Cth).
So, what are your options if you’re sexually harassed at work?
Lodge a complaint with your workplace
Approach your company’s HR department to lodge a written complaint. This should be crafted within the sexual harassment policy guidelines, if there is a policy in place. If your company doesn’t have an HR department, approach someone in a leadership role. The company must then:
- Speak to all parties involved, including the accused, yourself and anyone who might have additional knowledge of the situation.
- Keep accurate records of all meetings and discussions.
- Keep all investigations and findings confidential to only those directly involved.
- Take action to address the sexual harassment if it is found that the harassment has taken place.
Make sure you also keep your own written records of meetings and discussions. Keeping a diary of the harassment is also very helpful.
You are protected from adverse action as a result of your complaint under the Fair Work Act 2009. If you face retribution for coming forward, lose a promotion, have a promotion delayed or lose your job, your workplace is in breach of the law and you have grounds to take it further. If no action is taken either because the company wrongly found that the harassment didn’t take place or because they haven’t followed through with a promise of action, you may have grounds to take it further.
If you’re a union member, contact your union before approaching your workplace. They will be able to guide you on the complaints process.
Make a complaint to the Australian Human Rights Commission
If lodging a complaint with your workplace has been unsuccessful, or you feel uncomfortable doing so, you can make a complaint to the Australian Human Rights Commission. Complaints can also be made on your behalf, for example, by a lawyer, advocate or union. It is free to make a complaint.
Your complaint must be in writing. The commission has a complaint form that can be posted or faxed. Complaints can also be lodged at their website.
Complaints must be detailed and comprehensively explain what happened, when and where, and who was involved. Any evidence to accompany the complaint such as screenshots of text messages or social media messages will be helpful.
The commission’s role is to get both sides of the story and help resolve the complaint. The commission is not a court. Where appropriate, the commission will invite the parties to undertake conciliation where you and the respondent will talk about the issues to try to resolve them.
Take legal action
If a complaint with the Australian Human Rights Commission isn’t resolved, you can take it to the Federal Court of Australia. In certain circumstances, you can only take a matter to court if the court has granted you leave to do so.
However, you don’t have to wait until this stage to take legal action. You can engage a lawyer at the beginning of the process to advocate on your behalf. They can write to your employer to demand an investigation and that action be taken against the responsible parties. Furthermore, they can help you claim compensation for lost income, hurt, distress, pain and suffering.
By Rolf Howard, managing partner, Owen Hodge Lawyers
