The Inaugural Sexual Harassment in the Workplace Forum 2010
By Elizabeth Wing
Acting President
Anti-Discrimination Board of NSW
6 December 2010
Good morning, and thank you for choosing to attend this forum on sexual
harassment in the workplace. The Anti-Discrimination Board both educates
individuals and organisations about discrimination law, and handles
complaints of discrimination, including sexual harassment, and I am grateful
for the opportunity to address you on this important issue.
My role today is to present you with an overview of the legal framework under
New South Wales law that governs sexual harassment in the workplace in
New South Wales.
I will explain the definition of sexual harassment and show, by way of
example, how the definition has been applied in real workplace situations.
But before I begin explaining the legal architecture, as a group of employers,
human resource professionals and workplace participants, I thought you
would be interested in hearing some facts about sexual harassment,
particularly in the workplace.
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The Anti-Discrimination Board’s most recent annual Report (20092010) revealed that of the total number of sex discrimination complaints
received, 61.2% were allegations of sexual harassment.1
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The most employment complaints, 67.3%, related to the work
environment and harassment.
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Complaints of sexual harassment continue to be the largest percentage
of complaints under the federal Sex Discrimination Act.2.
In 2008, the barrister Chris Ronalds, observed, in her text, Discrimination, Law
and Practice, that:
‘Sexual harassment continues to be a serious employment issue
throughout Australia. It mainly involves acts of sexual harassment by
men against women. There are a few complaints by men of sexual
harassment by women or men and no reported cases of any
complaints by women against women.
Sexual Harassment Legal Framework in New South Wales
To help you understand the legal framework surrounding the prohibition on
sexual harassment in New South Wales, I will talk about:
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when the prohibition applies;
the definition of sexual harassment and what it means;
who is responsible for sexual harassment;
what reasonable steps employers should take;
Anti-Discrimination Board of NSW Annual Report 2009-2010, pp 16-19.
Ronalds, C. Discrimination Law and Practice, 3rd ed. The Federation Press, 2008, p97
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how sexual harassment is dealt with in other jurisdictions in Australia;
and
the role of the Anti-Discrimination Board and how it can help.
When the sexual harassment prohibition applies in NSW
In New South Wales sexual harassment is prohibited in certain areas of public
life. These include employment when you get or try to get goods or services,
when you apply to or are studying in any State educational institution; rent
accommodation; when you try to enter or join a registered club, or when you
are inside one; when buying or selling real estate; when taking part in sport;
and in the administration of NSW State laws and programs.
However, as the focus of today’s forum is sexual harassment in the
workplace, I will explain in a little more detail what kinds of working
relationships are covered by the ADA.
Employment
The definition of employment under the Anti-Discrimination Act 1977 (NSW)
(“ADA”) is quite wide, and the sexual harassment prohibition applies to:
employees, commission agents, contract workers, partners and, members of
Parliament. The ADA also provides for the sexual harassment prohibition to
apply to workplace participants in shared workplaces.
A workplace participant is any person who is an employer or employee, a
commission agent or contract worker, a partner in a partnership, a person who
is self-employed or a volunteer or unpaid trainee, and can extend to almost
any person who works in the same location as another, whether or not they
have the same employer.
As you can see in NSW there is a broad definition of employment.
Using a broad definition of employment, an employer cannot defend their
liability by saying, “well, the person is not an employee”, or “the person is a
volunteer”. This way the legislation tries to encapsulate all participants in the
workplace.
How sexual harassment is defined
Having explained that the sexual harassment needs to occur in certain areas
of public life to be unlawful in NSW, I will now explain the definition of sexual
harassment and how it applies.
Section 22A of the ADA provides that:
‘For the purposes of this Part, a person sexually harasses another person if:
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(a) the person makes an unwelcome sexual advance, or an unwelcome
request for sexual favours, to another person, or
(b) the person engages in other unwelcome conduct of a sexual nature in
relation to the other person
in circumstances in which a reasonable person, having regard to all the
circumstances, would have anticipated that the other person would be
offended, humiliated or intimidated.’
This definition can be broken down into four elements:
 there must be a sexual advance or conduct of a sexual nature;
 the conduct must be ‘in relation to’ the other person;
 the conduct must be unwelcome (this is a subjective test); and
 it must occur in circumstances in which a reasonable person would
have anticipated that the person would be offended, humiliated or
intimidated (this is an objective test).
So, what is a sexual advance, a request for sexual favours or conduct of a
sexual nature?
Interestingly, the Australian Human Rights Commission conducted a
telephone survey in 2008.
That survey found that 22 percent of women and 5 percent of men aged
between 18 and 64 had been sexually harassed at work. But one of the
study’s most startling discoveries was the widespread confusion about what
behaviour is and is not appropriate between colleagues. The survey found
that 22 per cent of survey respondents, who initially said that they had not
experienced sexual harassment in the workplace, went on to report
behaviours that may in fact amount to sexual harassment.
This shows that not all employers or workplace participants know what sort of
behaviour constitutes sexual harassment.
So what does?
The ADA does not actually describe what sort of conduct constitutes a sexual
advance, a request for sexual favours or conduct of a sexual nature, which
might seem, at first glance, to be unhelpful. However, case law provides a
useful guide as to the range of conduct which may be considered. In a case
heard in 1983 DCJ Matthews gave a summary of the type of conduct
considered to be sexual harassment. She stated:
‘…from attempts at sexual intercourse or some other overt sexual connection,
through the whole range of sexual contact, including kissing, touching or
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pinching, and can include purely verbal approaches such as sexual
propositions, or gender based insults or taunting. 3
Also DCJ Matthews provided sound reasoning as to why perhaps sexual
harassment is not defined in NSW legislation. She went on to say in the same
case:
‘ It would be wrong for this tribunal to attempt an exhaustive list, as human
inventiveness would almost certainly find another activities or approaches,
equally unwelcome and unpleasant, which might then be denied the label of
harassment.4 ‘
Other cases have helped to clarify the legislative definition.
The Administrative Decisions Tribunal in New South Wales made a summary
of the type of conduct that had been found to constitute sexual harassment in
earlier cases. Here are some examples:
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Writing a letter containing a declaration of love and implicit proposal for
sexual intimacy including marriage and children;
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Sexually explicit comments written on walls and equipment using a
person’s name, lewd magazines and posters with nude and particularly
clad women throughout the workplace, derogatory sexual comments
made about a person in a manner that she could hear;
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Intimate pre-employment interview questions; and
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Sexually explicit comments about a previous employee during a preemployment interview, providing money to purchase underwear,
requiring lingerie to be bought, referring to a women’s.
The Anti-Discrimination Board (ADB) has put together a non-exhaustive list of
conduct that, depending on the context, could be construed as sexual
harassment and fall within the definition:
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Staring or leering in a sexual manner;
Unwelcome wolf whistling;
Comments about a person’s physical appearance or sexual
characteristics;
Sexual or physical contact, such as slapping, kissing, touching,
hugging or massaging;
Displaying or circulating sexual material, for example on a notice board
or by email;
Repeated sexual invitations when the person invited has refused
similar invitations before;
Matthews DCJ, O’Callaghan v Loder [1983] 3 NSWLR 89 at 103.
Ibid.
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Initiation ceremonies involving unwelcome sexually related behaviour;
and
Intrusive questions about sexual activity
“Unwelcome conduct” – the subjective test
Now that I have discussed the definitions and the areas in which the sexual
harassment prohibition applies, the next step is to apply a two-part test. The
first part of the test is a subjective test to see whether the conduct was
“unwelcome”.
In order for the conduct to constitute sexual harassment, the respondent’s,
sexual advance, request for sexual favours or other conduct of a sexual
nature must be unwelcome to the complainant. Whether that conduct was
unwelcome or not is measured from the perspective of the person to whom
the conduct was targeted, rather than from the perspective of an ordinary, or
reasonable, person.
To be unwelcome, the conduct must not be solicited or invited by the
complainant and the complainant must regard the conduct as undesirable or
offensive. This element is referred to as the ‘subjective test’. In other words,
it is how the person affected by the conduct perceives the conduct and not
how it would be viewed by a reasonable objective person.
The Reasonable Person – Objective Test
The final element of sexual harassment is referred to as the objective element
and this is where the “reasonable person” test is considered. The way this is
done is to ask: whether a reasonable person, having regard to all the
circumstances, would have anticipated that the other person would be
offended, humiliated or intimidated.
A good illustration of how both these tests are applied can be seen in the case
of Chand v Rail Corporation of NSW5 Ms Chand alleged that a co-worker had
sexually harassed her by reading pornographic magazines in front of her.
She said that she had not said anything at the time but decided to complain
later. On another occasion, she had asked him not to read the magazine in
the office.
She took her claim of sexual harassment to the ADT but it was unsuccessful.
She successfully appealed to the Appeal Panel of the ADT, which said that
the earlier Tribunal decision had made no findings in relation to the first three
elements of s 22A as to whether the conduct was “unwelcome”, whether it
was of a sexual nature or whether it was "in relation to" Ms Chand. Those
were matters which the Tribunal should have addressed.
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(EOD) [2007]NSWADTAP 54
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Instead of assessing each of these elements, the Tribunal had based its
conclusion largely on Ms Chand’s subjective reaction to the conduct, that is
her failure to say anything except on one occasion, the delay in reporting one
of the incidents and the fact that two of the incidents were raised for the first
time at the initial hearing.
While those matters were relevant to the question of whether the conduct was
‘unwelcome’ they were not the matters that are relevant to an objective
assessment of how a person would react in the circumstances. The question
was not whether the person was offended, humiliated or intimidated by the
conduct. Rather, the questions that should have been asked were:
(i)
(ii)
(iii)
(iv)
whether the facts as found by the Tribunal constituted “unwelcome
conduct of a sexual nature" in relation to Ms Chand?
If so, would a reasonable person, having regard to all the
circumstances, have anticipated that Ms Chand would be offended,
humiliated or intimidated by that conduct?
If so, was Railcorp vicariously liable for the conduct of its employee
pursuant to s 53 of the ADA?; and finally
If so, what remedy, if any, should be ordered?
Who is responsible for the contravening sexual harassment conduct?
Generally speaking there are two respondents to complaints of workplace
sexual harassment. These are:
1. The individual who actually carries out the conduct is personally liable
for their own actions. The Act says:
‘It is unlawful for an employee to sexually harass a fellow
employee…’
Other sections of the Act repeat this wording in relation to contract
workers, workplace participants etc.
2. The individual’s employer is also usually liable because section 53 of
the ADA makes the employer or principal liable for the conduct of an
employee or agent that breaches the sexual harassment prohibitions,
unless the principal or employer did not expressly, or by implication,
authorise the perpetrator to do the act. Case law has interpreted this
very widely and, generally, an employer would have to show that it had
taken all reasonable steps to avoid liability under this section.
All Reasonable steps
So what are reasonable steps?
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The more an organisation can show that it had implemented sexual
harassment prevention policies and procedures, fairly and consistently, the
more it will be able to demonstrate that it took all reasonable steps to prevent
sexual harassment from occurring. This might achieved by employers in the
following ways:
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Clear polices that state what type of behaviour could be construed
as sexual harassment and are not acceptable in the workplace;
A rigorous record of sexual harassment prohibition training should
be kept to demonstrate that all employees are aware of the relevant
policies;
Employers should develop a code of conduct for all workplace
participants;
By having good EEO policies and grievance procedures, which are
known to everyone and understood, an organisation will show that it
is serious about removing sexual harassment from the workplace,
but employers must also ensure that their policies and procedures
are actually followed;
Such policies and procedures will provide a framework for staff
members to come forward with their problems and help to resolve
them fairly and consistently;
Strong prohibition message via policies and training programs that
sexual harassment will not be tolerated and will be appropriately
disciplined;
All employees should be aware of and receive training in the
organisations’ policies and grievance procedures. Importantly,
ongoing training and refresher courses should also be provided
from time to time; and
A fair and unbiased investigation process for complaints.
Here are two examples of cases that clearly demonstrate what an
organisation should not do and the significant penalties that employers can
face.
A KFC franchisee was ordered to pay an employee $15,000 for sexual
harassment and sex discrimination despite having policies and procedures in
place because an assistant manager harassed a female colleague and
showed inappropriate material on his mobile phone. On one occasion he
grabbed her legs pulled her across the floor and crouched on all fours
growling like a cat. The ADT expressed particular concern that many
employees of the franchisee, 60%, were 15-18 year olds, many of whom were
in their first jobs, and could not be expected to complain about someone in a
position of authority. 6
In the KFC case the Tribunal noted that “While the respondent provided some
training and had a [a sexual harassment and EEO] policy there is little
evidence that this is enforced and consequently it was ineffective in
preventing the [harassing] conduct. For this reason the employer was held
6
Sharma v QSR Pty Ltd t/as KFC Punchbowl [2009] NSWADT 166
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liable for the discriminatory conduct of its assistant manager.
In another case, the Federal Court awarded a landmark $446,000 payout for
sex discrimination and sexual harassment after a female employee was
subjected to pornographic SMS messages and requests for sex and other
harassment.7 It was found that the employer in question not only had no
discrimination or harassment policies in place to deal with complaints, but it
also targeted the victim as a problem rather than the perpetrators, and sent
her warning letters criticising her performance, rather than investigating or
dealing with the complaints, and finally dismissing her.
By way of contrast, here is an example of what an employer should do when
faced with a complaint of sexual harassment:
In AWU, NSW (on behalf of Grahovac) v Bluescope Steel8 a complaint by a
co-worker (female) that Mr Grahavac had kissed her on the mouth resulted in
his dismissal fro the company. Mr Grahovac denied the allegation and
claimed that the women had complained to get back at him after a dispute.
Bluescope originally stood Mr Grahovac down on full-pay and conducted an
investigation. The investigation found that Mr Grahavac had breached its
EEO policy and the ADA.
Mr Grahovac claimed he did not know about Bluscope’s EEO policy.
Bluescope showed the Industrial Relations Commission (IRC) that it had
conducted training and specific sexual harassment training had been given to
Mr Grahovac.
Initially, the complainant did not want disciplinary action to be taken against
Mr Grahovac she just wanted the behaviour to stop. A statement was taken
from the complainant and the perpetrator also made a statement the same
day. The complainant’s attitude changed when she was accused of being a
liar by Mr Grahovac.
The initial investigation was reviewed by a more senior officer to ensure that
all the appropriate steps had been taken and all of the evidence had been
given due consideration before Mr Grahovac was dismissed.
The IRC praised the manner in which the complaint had been investigated,
pointing out that Bluescope’s policies and procedures had been scrupulously
followed. The IRC praised the way Bluescope conducted the complaint
despite the complainant’s reluctance, as the behaviour had breached
company policy. This finding based on evidence of a number of people
including a psychologist.
The IRC upheld the dismissal and noted if the complaint had not been
investigated, Bluescope may well have been in breach of occupational health
and safety legislation because it would have breached its policy.
7
Poniatowska v Hickinbotham [2009] FCA 680
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[2009] NSWIRComm 86 (5 June 2009)
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Differences and similarities in other jurisdictions in Australia
As some of you in this forum are not from New South Wales, and others may
conduct your businesses outside NSW, I thought it would be useful to very
briefly outline a few of the differences and similarities in sexual harassment
law in other jurisdictions in Australia.
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In every jurisdiction in Australia there is a prohibition against sexual
harassment either generally or in defined circumstances;
There is a greater degree of uniformity between the different statutes
which prohibit sexual harassment than there is in most other branches
of anti-discrimination law;
The various statutory definitions of the conduct which constitutes
sexual harassment are similar;
The relationships which are governed by the legislative prohibitions
against sexual harassment do not differ markedly;
The Commonwealth Act expressly prohibited sexual harassment in its
legislation in 19849 and has influenced the other States and Territories’
legislation since then.
The earlier definitions of sexual harassment were narrow and limited
and most of the current definitions are broader and encompass a wider
range of behaviour and extend to more relationships
Queensland has the most comprehensive prohibitions against sexual
harassment. It is unlawful for one person to sexually harass another
person in any circumstances which means there are no restrictions in
the relationship or circumstances in which sexual harassment is
prohibited;
Victoria the ACT and New South Wales have essentially the same
definition
South Australia and Tasmania have similar definitions;
There are some differences between the definition of sexual
harassment in the Queensland and Northern Territory legislation such
as the subjective element, that we talked about earlier in the New
South Wales legislation. The Queensland legislation refers to four
types of conduct and the term ‘unsolicited’10 is used in two of the
categories of conduct’;
The Queensland definition of sexual harassment also contains an
optional objective element.
So for example is the respondent’s
conduct fits into one of the four categories, it is also necessary to
establish either the respondent engaged in the conduct with the
intention of offending, humiliating or intimidating the complainant or that
the conduct occurred in circumstances which would have caused a
reasonable person to anticipate the possibility that the complainant
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Sex Discrimination Act 1984 (Cth)
‘Unsolicited is the term used when dealing with the grounds of an act of physical intimacy and a
request or demand for sexual favours. The use of this terms means that the onus of is on the respondent
to establish that there was some solicitation of the conduct.
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would be offended, humiliated or intimidated by the conduct
Role of the Anti-Discrimination Board (NSW)
The main functions of the ADB are:
1. We work to prevent discrimination from occurring. We educate people
about their rights and responsibilities and explain how they can prevent
and deal with discrimination. We do this through consultations,
education programs, seminars, talks, producing and distributing written
information and our website.
2. We provide an enquiry service for people to ask about their rights and
responsibilities under anti-discrimination legislation, and we will often
advise callers about ways to resolve complaints directly with their
employers, without the need for a formal complaint.
3. When formal complaints do arise, we investigate the complaint and,
where possible, we work with both parties to try to resolve the
complaint through conciliation. The Board’s role in this process is
completely impartial – we don’t take sides or act for either party, but will
discuss the issues raised by the complaint and potential ways for the
parties to resolve it.
4. We advise the Government on discrimination matters and handle
applications for exemption from the ADA.
So in closing, I cannot stress enough to employers and workplace participants
the importance of sexual harassment education. Everyone at work needs to
know what is acceptable conduct and what is prohibited in the workplace. The
key here is to educate everyone as seen in some of the cases I have told you
about and I hope you will take that message back to your workplaces
following this forum.
Thank you for your attention and if you have any questions please do not
hesitate to ask. Our contact details are in your materials and I would be
happy to let you know about our discrimination education, workshops and
material we have available.
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