Sexual Harassment as a WHS Issue

Sexual harassment is in the media a lot at the moment.

In Queensland, under the Anti-Discrimination Act 1991, sexual harassment is illegal. There seems to be a lot of confusion about what constitutes sexual harassment. The Act defines sexual harassment as when a person:-

(a) subjects another person to an unsolicited act of physical intimacy; or

(b)makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or

(c)makes a remark with sexual connotations relating to the other person; or

(d)engages in any other unwelcome conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so—

(e)with the intention of offending, humiliating or intimidating the other person; or

(f)in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

Sexual harassment does not only occur in the workplace. It is not necessary that the harassment causes a person to suffer any form of injury for it to be illegal and a complaint can be made to the Anti-Discrimination Commission. In our practice we all too regularly see workers who have sustained a psychiatric injury as a result of sexual harassment in the workplace.

Employers owe a duty of care to workers to take reasonable care to avoid workers sustaining an injury at work. Psychiatric injury is a foreseeable consequence of workers being sexually harassed at work. In order for an employer to discharge their duty of care to employees, they should:-

1. Have in place an anti-discrimination and sexual harassment policy;

2. Provide training to staff about the nature of sexual harassment and the fact that it will not be tolerated in the workplace;

3. Have in place a grievance procedure;

4. Take complaints of sexual harassment seriously.

Unfortunately recent media reports seem to have perpetuated the ongoing view that sexual harassment is a war between the sexes where men are the perpetrators and women the victims. I have represented men and women who have been victims of sexual harassment and who have suffered psychiatric injuries as a result.

In practical terms, sexual harassment is more about power than it is about gender. A person is more likely to be humiliated or intimidated when there is a power imbalance. For this reason, it happens more frequently in the workplace and usually where the perpetrator is in a position of power or authority over the victim.

The reason that psychiatric injuries are not uncommon is that a worker can find themselves in an impossible situation. If they submit to unwanted advances then they may feel their intimate relationships are at risk. If they do not submit then they may have reason to believe their job is at risk or that conditions in the workplace may become intolerable.

Another myth is that sexual harassment is a phenomenon of people becoming more “precious” or “fragile”. This has not been my experience. I have never had any claims or even inquiries about someone being upset by compliments or gifts. These things may make someone feel awkward but they are unlikely to complain unless they feel vulnerable. It is difficult to imagine a situation in which someone will suffer a psychiatric injury as a result of this behaviour.

Rather, the cases I have seen have been so clearly insulting, belittling and abusive that there could be no doubt that the conduct would be either designed to insult, humiliate or intimidate or any reasonable person would have expected that to happen.