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Under the Federal definition and all States (except Western Australia), sexual harassment is made up of two components; the first component is the type of behaviour that is unlawful, the second is what will happen to the person if they refuse to go along with the unlawful behaviour.
Type of Behaviour
There are three types of unlawful behaviour, which are-
- An unwelcome sexual advance
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- An unwelcome request for sexual favours
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- Unwelcome conduct of a sexual nature
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The behavior covers oral or written statements and would include images, physical gestures, sexually explicit material via email, on a person’s computer screen, sexual jokes and banter and touching. It has been held that it is no excuse to a sexual harassment claim that sexual conversations and banter were part of the work culture.
The second part of the definition provides that the unwelcome sexual behavior must occur “in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated”.
Examples of sexual harassment are
- where a person was asked for sexual favours and subjected to physical contact and subsequently sexual assaulted[1]
- During a business trip to Sydney the employer made sexually suggestive remarks, repeatedly suggested seeing a live sex show and entered the applicant’s bedroom uninvited and in his underpants and holding a pillow[2]
- An assistant in a butcher’s shop was asked “how’s your love life?” and negative comments about her boyfriend and his sexual prowess[3]
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[1] Lee V Smith [2007]FMCA 59.
[2] Cross v Hughes (2006) 233 ALR 108.
[3] San v Dirluck Pty Ltd (2005) 222 ALR 91
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Sexual Harassment
