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What can I do if am being sexually harassed at work?

The issue of sexual harassment in Australian workplaces is currently at the forefront of people’s minds, due to serious sexual assault and misconduct allegations levelled against ministers and employees working at Australia’s Federal Parliament.

The ensuing national discussion about the prevalence of sexual harassment in the workplace and how to deal with it is difficult, but necessary.

Underpinning these events is the fact that everyone has the right to feel safe in their workplace, and the need for appropriate remedies to deal with sexual misconduct and harassment, especially while at work.

If you have experienced sexual harassment it is important to understand your legal options. This can assist in preventing future behaviour, as well as seeking redress for the harm that you may have suffered.

What is Sexual Harassment?

Sexual Harassment is generally defined as unwelcome conduct of a sexual nature.

It can include a sexual advance, a request for sexual favours, or other unwelcome conduct, such as physical contact, inappropriate comments (verbal or in writing) or even physical gestures. While sexual assault is a crime, it is also a form of sexual harassment.

The Sex Discrimination Act 1984 (Cth),defines sexual harassment as occurring where where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person being harassed would be humiliated, or intimidated. Unlike bullying, sexual harassment can arise from a single one-off action. However, because of the elements around the behaviour being “unwelcome” and the impact on the person harassed  – the fact that the act was repeated can assist in showing that sexual harassment has taken place.  By way of example it is seldom sexual harassment to ask as co-worker on a date on a single occasion.  However, asking repeatedly when the person has said no is likely to suggest that the conduct was unwelcome.

Although sexual harassment can happen to anyone, regardless of gender or sex, sexual harassment of women is by far the most common form of sexual harassment.  Similarly, while in almost all instances’ perpetrators are male.

What Laws are there against Sexual Harassment?

The laws regarding sexual harassment are quite similar under state and commonwealth law.

Under federal law, The Sex Discrimination Act bans sexual harassment in the workplace. Under section 106 of the act, employers are liable for their employee’s conduct (and are treated as if they had done the harassment) if an employee commits sexual harassment and the employer did not take all reasonable steps to prevent this behaviour from taking place.

It is therefore expected for employers to have in place preventative workplace measures to stop sexual harassment from taking place. The Employer’s obligation is even more onerous if they have been warned that a person has previously engaged in harassment. What is reasonable in all the circumstances may differ from workplace to workplace, but generally speaking, the minimum would include that an employer has a sexual harassment policy, and ensures that it is implemented and working effectively.

Employers may also have other obligations under other areas of law, such as occupational health & safety laws.

If you have been sexually harassed in the workplace, and your employer did not have adequate safeguards, policies, and procedures in place to prevent sexual harassment from taking place, you may have a claim against your employer. It is not enough for an employer to simply have an anti-sexual harassment policy – if the policy is not actively enforced in the workplace, then your employer may still be liable.

If you believe that you are being sexually harassed in your workplace it is a good idea to keep a contemporaneous written record of every separate incident that occurs, making sure to include information about the time and place it took place, as well as details

Know your Legal Options

If you have been sexually harassed, seeking independent legal advice as soon as possible, to ensure as best possible outcome.

An expert employment lawyer will be able to explain to you, confidentially, your rights, legal options in your circumstances, and also, the risks and likely impact of making a complaint. Human Resources Departments are not always your friend and being aware of potential pitfalls and outcomes, however unfair, is critical.

Segelov Taylor Lawyers Can Help

If you have experienced harassment in the workplace, Segelov Taylor can provide guidance and advice regarding your legal options.

Segelov Taylor principal David Taylor is an accredited specialist in employment law. If you have concerns about harassment in the workplace, please get in touch by email david@segelovtaylor.com.au or by phone (02) 8880 0500.

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