What counts as workplace sexual harassment in Australia?
- Mel Brush
- Jun 13
- 8 min read
Updated: Jun 17
A guide to Australian sexual harassment laws for employers and how to recognise and prevent it
Sexual harassment in the workplace basically means any unwanted sexual advances, requests for sexual favors, or other sexual behaviour that makes someone uncomfortable. It doesn't matter if the person doing it meant to harass; what matters is whether a reasonable person would think it's offensive, humiliating, or intimidating. Even one time is enough to count as harassment.
What constitutes workplace sexual harassment in Australia?
Lots of different things can be considered sexual harassment, such as touching someone inappropriately, making suggestive remarks, asking for dates that aren't welcome, prying into someone's personal life, or sending sexually explicit messages. This can happen in person, over the phone, in emails, online, or even at work events like conferences or parties.
To provide a clearer picture, The Australian Human Rights Commission provides the following explanation and examples:
Workplace sexual harassment can include unwanted behaviours like sexual comments, questions or jokes about:
how someone looks
their cultural or religious background
their sex or gender identity
their disability
their age
their sexual orientation.
Workplace sexual harassment can also look like:
staring in a way that makes you feel uncomfortable
following (stalking)
inappropriate touching without permission
unwanted calling, texting or repeated requests to meet outside of work.
It’s important that everyone understands that people related to work include people like patients, customers and contractors, not just staff members. And it doesn’t have to happen in person or in the office to be workplace sexual harassment. An unwanted comment at knock-off drinks, or on social media from someone you know through work would still count.
Put simply, something can still be workplace sexual harassment, even if:
The other person or people involved say they ‘didn’t mean it’, or ‘were only joking’
It doesn’t happen in the office
It happens outside of work hours
It happens through social media, email, text or phonecalls
The person or people doing it aren’t staff members
Examples of workplace sexual harassment scenarios
Below are some scenarios that provide an example of the types of behaviours that constitute workplace sexual harassment.
Scenario 1: Inappropriate jokes and comments
Andrew frequently tells sexually explicit jokes in the breakroom, even after being asked to stop. He often makes comments about female employees' appearances, rating them or suggesting they dress a certain way.
Scenario 2: Repeated requests to meet outside of work
Rakesh, is drunk at the staff Christmas party. He repeatedly pesters Andrea to come back to his apartment later. She has to tell him no numerous times before he leaves here alone.
Scenario 3: Unfavourable work conditions
Cam, the duty manager in a supermarket, asks one of the nightfill staff members, Arlo, on a date and is turned down. He feels so embarrassed by this that when he is doing the rosters next week, he changes Arlo’s regular shifts so that they don’t have to work together. This means that Arlo no longer gets his regular Sunday shift, and misses out on the penalty rates.
Scenario 4: Sexist comments
Jamie consistently refers to female colleagues as "sweetheart," "honey," or "girls," even in professional settings, and makes comments that diminish their professional capabilities based on their gender (e.g., "she's too emotional for this role").
Each of these scenarios provide an example of behaviours that can be deemed unlawful and are unacceptable in a workplace.
Prevalence of workplace sexual harassment in Australia
The rates of workplace sexual harassment in Australia are shocking. More than 40% of women and over a quarter of men have been affected in the last five years. And it's even worse for some groups. We're talking over half of Aboriginal and Torres Strait Islander workers, almost half of LGBTIQA+ individuals, and nearly half of younger workers aged 15-29. This really shows how sexual harassment is linked to other kinds of discrimination and issues with power.
The impacts of workplace sexual harassment
Sexual harassment has serious and lasting effects on people, causing emotional and physical problems. Workers can end up feeling annoyed, scared, and embarrassed. The harassment can cause a loss of self-esteem, lead to physical health problems such as headaches, or even lead to people developing long-term health issues.
Plus, it's not just hurting individuals—workplace sexual harassment costs the Australian economy a whopping $3.8 billion annually, with $2.6 billion attributed to lost productivity in 2018. People perform better at work when they feel safe and supported, so it’s not surprise that productivity is lost when someone is suffering sexual harassment at work.
All this highlights the importance of not only dealing with sexual harassment in the workplace in an effective, trauma-informed manner, but also preventing it from occuring in the first place.
Is workplace sexual harassment illegal in Australia?
Updates to the Sex Discrimination Act (1984) and the Fair Work Act (2009) mean that since March 2023, the law explicitly prohibits sexual harassment in connection with work. These are federal laws, so they apply Australia-wide. Importantly, sexual harassment is considered serious misconduct and can be grounds for dismissal.
The changes to the laws have not only clarified that workplace sexual harassment is unlawful. Workplaces also have a legal requirement to to prevent and address sexual harassment. For managers and HR / People and Culture professionals, understanding these legal and ethical obligations is paramount, as non-compliance can lead to significant legal and organisational consequences.
Understanding the 'positive duty' to prevent harassment
A pivotal development in Australian workplace law is the 'positive duty' under the Sex Discrimination Act. This mandates that employers proactively eliminate unlawful behaviours, including sexual harassment and discrimination, rather than merely reacting to complaints.
This duty signifies a fundamental shift, moving the legal burden towards active prevention and requiring strategic, top-down commitment to cultural transformation. It means integrating prevention into core business strategy, influencing resource allocation, and leadership accountability.
Basically, this means companies now have to be proactive and really serious about stopping sexual harassment. It's not enough to just react when something happens. They need to make preventing it a key part of how they run things, from the top down. This includes putting money and resources into it, and holding leaders responsible. It's all about changing the workplace culture for the better.
Alarming data shows 40% of leaders were unaware of these new obligations, posing a direct legal risk.
Failure to proactively prevent harassment can now lead to legal action, even without a specific complaint.
This evolution compels investment in comprehensive training, robust policies, and fostering a respectful workplace culture, transforming these from best practices into direct legal imperatives.
Understanding vicarious liability for employers
Beyond direct acts, employers can be held vicariously liable for sexual harassment committed by their employees or agents if it occurs during employment. This means that Employers aren't just on the hook for their own actions; they can also be responsible for sexual harassment by their staff if it happens at work. To avoid liability, employers need to show they did everything reasonably possible to prevent it. The Australian Human Rights Commission lays out standards and guiding principals for complying with this, which we unpack further in our blog post: Understanding Your Positive Duty.
Consequences of ineffective responses to harassment
Not dealing with sexual harassment in the workplace can really cost a company, both money-wise and in other ways. For example, fines can be pretty big – there’s no cap at the federal level, and in WA, it can go up to $40,000. Plus, damages awarded to victims can be even higher, like $250,000 just for general damages, and even more for retaliation or if the employer really dropped the ball on creating a respectful environment.
But it’s not just about the money. Failure to address cultural issues that enable harassment in the workplace leads to employee dissatisfaction and turnover. When harassment isn't taken seriously, or complaints are ignored, three-quarters of employees consider leaving. Ineffective responses can lead to significant non-financial costs: productivity losses, reputational damage, increased sick leave, team conflict.
Responding to workplace sexual harassment: essential steps for Australian workplaces
Whether receiving a complaint, or witnessing an incident, it's vital that everyone in a workplace takes it seriously and acts promptly. Workplaces need to demonstrate a commitment to maintaining a safe work environment by having robust policies in place, and ensure everyone understands them.
Staff should fully understand what to do if they experience unwanted behaviour, and how to intervene as a bystander if they witness something. Managers and those working in HR/People and culture should understand how to respond to complaints in a trauma informed manner. Executives need to lead by example. They should be able to recognise the signs of sexual harassment and invest in fostering a safer workplace culture.
Trauma-informed Workplace Responses: A step-by-Step Guide
To support workplaces to respond to sexual harassment in a trauma-informed manner, we've put together a detailed guide. Go beyond the buzzword and build a deep understanding of what trauma-informed really means, learn the do's and dont's of responding to a disclosure, and get step by step guidance on how to support staff who come forward.
How can we prevent sexual harassment in the workplace?
Reacting appropriately when complaints arise is vital , but it's equally important to prevent harassment in the first place, and to do this we need to focus on creating a cultural shift.
It’s important to note that in many cases, the person engaging in the unacceptable behaviour doesn’t necessarily intend to cause harm. In some instances, they may not fully understand how they make the other person feel. They may just be behaving in the way they’ve always behaved, and not understand that it’s a problem.
Consider the examples of sexual harassment in the scenarios mentioned earlier. Andrew in the first scenario probably thinks the jokes and comments are just banter. When they’ve been socially acceptable in highschool, or at the footy club, why should work be any different?
Rakesh has always been taught that persistence pays off, so he asks multiple times - he doesn’t let being turned down deter him. Cam is too caught up in his own embarrassment to even think about how the shift changes disadvantage Arlo, because we’ve grown up believing that it’s terrible to be told no.
Jamie’s trying to be friendly with the ways he addresses women - he’s never actually looked closely at the way this language infantilises, or at the fact that he doesn’t address men this way. We are all a product of the society we’ve grown up in, so if we want to prevent this sort of behaviour, it needs to be understood and explicitly addressed. Education is needed. Through increased understanding, and a practical, communication skills-based approach, we can move towards a consent culture.
Additionally, sexual harassment, like all forms of sexual violence, is driven by the power imbalances in our society. This means that if we want to stamp out sexual harassment, we need to take steps towards making our workplaces more equal - not just for women, but also people of colour, LGBTIQA+ communities, people with disabilities. Inclusive workplaces are safer workplaces.
Taking action: building a psychologically safe workplace
All employers in Australia must demonstrate a commitment maintaining psychologically safe, inclusive workplaces. If workplaces want to not only protect themselves from liability, but retain staff and get the most out of them, a proactive approach is needed. Resources should be allocated to fostering a more consensual, more inclusive culture.
Let’s Talk About X can support workplaces to fulfil their Positive Duty, through training aligned with the ACHR’s seven standards and guiding principles. Take a look at our consent culture and LGBTIQA+ inclusion training for workplaces.
