Unwelcome Workplace Conduct Could Land You In Court

If you display unwelcome sexual advances to your staff, treat them with a lack of dignity, courtesy and respect, give less favourable treatment to anyone, or make an employee the subject of victimisation, you could face legal action.

Equal opportunity law says that everyone has the right to work without being impeded by discriminatory or harassing behaviour. This applies no matter how junior they are, what job they carry out, what sex they are, or which sexual persuasion.

There is no single, universally accepted definition of sexual harassment. The most important element however, is unwelcome behaviour. If the behaviour is uninvited and the target of this conduct finds it undesirable or offensive, then it is considered an unwelcome act.

What constitutes conduct of a sexual nature?

The behaviour in question must have sexual connotations or implications.
It may be directed to the employee being harassed in a personal, direct way.
It does not necessarily have to be directed to one person either. It may be directed at a group, or at nobody in particular such as lewd jokes, comments or pornographic posters.

It takes two to tango

If the interaction is consensual, welcome and reciprocated it is not sexual harassment. Sexual attraction is part of normal relations between people and often occurs in the workplace. The law on sexual harassment is not intended to prohibit sexual attraction and flirtation which is mutual and welcome.

The "egg-shell skull" rule

It is not relevant that other employees may not react in the same way as you do. What matters is how the person on the receiving end of the offensive behaviour reacts. People have different sensitivities to certain types of behaviour and may react differently. In legal terms this is called the "egg-shell rule."

How does the law view sexual harassment?

If the complaint comes before a court or tribunal, they are required to consider whether a "reasonable person" would have anticipated that the person alleging harassment would be offended, humiliated or intimidated. Other factors, such as the relationship of the parties and the context in which the harassment took place, are also likely to be considered.

If the court or tribunal considers that a "reasonable person" would have
reacted in the same way as the person alleging harassment and all other
elements are proved, there will be a finding that sexual harassment took
place.

It need only be one act to constitute sexual harrassment, if it satisfies the test that a reasonable person would consider the action to cause offence, humiliation or intimidation.

Reprinted with permission of NSW Business Chamber. For more information about this article or NSW Business Chamber, its products, services and membership, please call 13 26 96 or visit the web site: www.nswbusinesschamber.com.au
First published: 24 June 2002.
Last updated: 5 October 2005.