In brief - Sexual harassment increasing despite greater public awareness
Unwanted and unwelcome behaviour is increasingly occurring electronically through the use of email, mobile phones and social media.
What is sexual harassment?
According to the Australian Human Rights Commission (AHRC), one in five women experience sexual harassment in Australian workplaces.
Sexual harassment is defined in the Sex Discrimination Act as a form of discrimination which consists of "any unwelcome or unwanted sexual behaviour which makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstance."
Unwanted and unwelcome behaviour need not be experienced in person but rather may, and with increasing frequency does, occur electronically through the use of email, mobile phones and social media sites. The accessibility of email and social media sites through portable electronic devices makes communication instantaneous and can blur the distinction between personal communications and workplace conduct, exposing employers to potential claims of sexual harassment unless they take reasonable steps to prevent the conduct.
Sexual harassment in the workplace is increasing
In October 2012, the AHRC released a report, Working without fear: Results of the Sexual Harassment National Telephone Survey 2012. The report summarised the AHRC's survey results and pointed to an increasing incidence of sexual harassment in the workplace, despite greater public awareness about the issue.
Women under 40 years of age (and particularly between 18 and 24) are reportedly most likely to be sexually harassed by a male co-worker. Men harassing women accounted for 56 per cent of reported sexual harassment, while male harassment of men accounted for 23 per cent. The harasser was most frequently a co-worker, followed by a supervisor or manager.
The most common behaviours reported were sexually suggestive comments, offensive jokes and intrusive questions, occurring over a variety of media, including technology. What is not clear in the report is whether direct person to person sexual harassment is as prevalent or whether the incidence of electronic harassment is increasing.
Sexual harassment via firm's email system
Recent decisions dealing with sexual harassment demonstrate that electronic harassment is occurring in Australian workplaces and illustrate the circumstances in which women have reported being subjected to electronic sexual harassment by male co-workers.
In 2011, a professional services firm settled a sexual harassment claim where allegations of sexual harassment involved communications over the firm's email system. In that case, the complainant asserted she became the subject of office gossip and rumours after having a brief intimate encounter with a co-worker.
She lodged a sexual harassment claim against the firm, asserting that it had a culture of sexism and failed to prevent inappropriate humour among male employees about their female co-workers. In doing so the complainant relied upon emails sent by a male colleague from his work email address.
The firm denied that any of the conduct was done "in connection with employment" and asserted that it took all reasonable steps to prevent its employees from engaging in the type of behaviour in the complaint.
Woman harassed by emails and text messages
In another case, Employment Services Australia v Poniatowska, a young woman alleged that she had been sexually harassed by two male co-workers by way of emails and text messages. In particular, she alleged that she was sent unsolicited emails and text messages at work inviting her to have a sexual relationship with a co-worker. She also alleged that a second male co-worker sent a pornographic picture from his mobile phone with an offensive text message.
The court found that the woman's complaints were dealt with inappropriately and inadequately. Following receipt of her complaint, her employment was terminated for poor performance. The court found the company had determined that the complainant did not "fit" its work environment because she was a female who would not tolerate sexual harassment and as such found that she had been treated differently on the basis of her gender.
Employers should review harassment policies and train employees
Unless employers take reasonable steps to prevent employees from engaging in inappropriate electronic behaviour, they may be found liable for their employees engaging in sexual harassment electronically by way of email or social media sites while at work or on personal electronic devices.
We recommend that employers review their harassment policies to ensure that they prohibit inappropriate use of technology and inappropriate electronic communications and/or behaviour. Policies should specifically highlight that sexual harassment is unlawful under the Sex Discrimination Act and under state and territory anti-discrimination legislation.
We also recommend that all employees are trained in harassment policies on a periodic basis and that training records are maintained. We further recommend that employers act promptly when they receive harassment complaints and investigate them fully, reasonably and fairly.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.