Know where the line is
Sexual harassment can involve being targeted for what you look like, your gender, who you are attracted to, your age or any other factor. The common thread is that this conduct results in unwelcomed sexual advances or similarly offensive behaviour. These acts of violence — whether physical or psychological — can make the victim feel offended, intimidated or humiliated. Such interactions have nothing to do with mutual attraction or friendship.
Examples of sexual harassment behaviour may include:
- Deliberately brushing up against you or other forms of unwelcome touching.
- Sexting or emailing sexually explicit imagery and/or phrasing.
- Asking for sexual favours.
- Accessing sexually explicit internet sites in front of you.
- Displaying magazines, posters or screen savers depicting images of a sexual nature.
- Intrusive questions or conversations about your body or private life.
- Suggestive comments or jokes.
- Bullying that involves insults or taunts of a sexual nature.
- Inappropriate messaging or advances on social networking sites.
- Incessant requests to go out on a date.
- Staring or leering.
The unfortunate reality is that many who have experienced these interactions have never filed a complaint. In a survey of those who were sexually harassed at work, the Australian Human Rights Commission reported that only 17% of respondents filed a complaint.
This reporting deficiency could be the cause of Australia’s lack of a national human rights act.
It may also be due to where the responsibility to report lies. As it stands right now, the burden to report sexual harassment is on the victim. This can come with many fears of what backlash the individual could experience, such as negative repercussions on their career, reputation and relationships within their workplace or throughout their industry.
Laws that aim to protect you in cases of workplace sexual harassment
In 2020, the Commission made an amendment called Respect at Work., also known as the Sex Discrimination and Fair Work Amendment Act 2021. The Act seeks to make a significant contribution to reducing workplace sexual harassment and creating a safer, more productive workspace.
This amendment works in conjunction with the Sex Discrimination Act 1984, which aimed to eliminate discrimination based on gender. This Act was written to comply with the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The latter resolution demands that all UN member nations illegalise sexual harassment in the workplace, in conjunction with its broader goal of eradicating all misogynistic discrimination.
Various workplace health and safety laws also attempt to support victims. They require employers to make substantial efforts to prevent sexual harassment in the workplace by eliminating health risks. However, the laws surrounding these requirements are incredibly complex, and don’t outline the best method of action for prevention.
If you are experiencing unlawful sexual harassment, there are steps you can take to report the incidents and seek support.
What to do if you’re being or have been sexually harassed
If you or someone you know is being sexually harassed or bullied, you should seek legal counsel immediately. Speaking with a human rights law professional can help you understand what rights you have, the steps you need to take and the justice you can see.
You must remember four things as you decide on taking action after being sexually harassed:
- Do not quit your job. You have the right to work, and your harassment solicitor can help you stand up for your rights the correct way. We can help you even if you have been forced to resign.
- Speak with someone in management or HR. No business wants a sexual harassment claim hanging over its head. Speaking with someone in a higher position of authority than you can help you get the matter resolved.
- Document and keep records of your experience. Sometimes, writing down your experience can prolong or compound the trauma resulting from sexual harassment. However, documentation can help you file a claim and win compensation. Keep screenshots and copies of anything your harasser sends you, and record every sexual advancement they make, with times and places denoted.
- Talk about what is going on. Even if the management at your business does nothing to support you and stop the harassment, or their solutions negatively affect you, you still have options. Reach out to a legal representative to get the answers and support you need.
Once you have sought legal counsel, you should file a complaint under the Sex Discrimination Act 1984 with the Human Rights and Equal Opportunity Commission (HREOC). A commission officer will assess your complaint and decide whether or not it should move forward to conciliation.
The conciliation process brings the two parties together (the victim and the respondent, whether it be an individual or a company), to resolve the matter. This is a confidential process where the parties are given a chance to come to an agreement and work through the issues. However, in this process, HREOC is not determining whether or not the victim has experienced sexual harassment. If no resolution can be made, the complainant will lodge an official claim with the courts, and the complaint with HREOC will be terminated.
Many sexual harassment complaints are successfully resolved within conciliation. The settlements reached within this process are varied and depend on what the victim is seeking — and what the respondent is prepared to honour.
If the complaint cannot be resolved during the conciliation process, the victim will have to apply with the Federal Court of Australia or Federal Magistrates Court. Every state has its own rules and regulations for how to lodge a claim to either court.
Where to lodge a sexual harassment complaint based on location
In all locations across the nation, employees can lodge a claim with the Fair Work Commission or the Australian Human Rights Commission. However, depending on where you live, there are laws on where you can apply depending on your unique circumstances.
- Australian Capital Territory: Employees can have their claim referred to the Australian Capital Territory Civil and Administrative Tribunal or lodge a claim to the Australian Capital Territory Human Rights Commission.
- New South Wales: Employees will lodge an application with the Anti-Discrimination Board of New South Wales (ADBNSW) or can get the case referred to the New South Wales Civil and Administrative Tribunal.
- Northern Territory: Employees will lodge an application with the Northern Territory Anti-Discrimination Commission or get the case referred to Northern Territory Civil and Administrative Tribunal.
- Queensland: Employees submit their claims application with the Queensland Human Rights Commission or get a referral to the Queensland Industrial Relations Commission.
- Tasmania: Employees can file a complaint with the Tasmanian Equal Opportunity Commission or be referred to the Anti-Discrimination Tribunal.
- Victoria: Employees can either submit a claims application to the Victorian Equal Opportunity Commission or get a referral to the Victorian Civil and Administrative Tribunal.
Burden of proof
You may be concerned about proving that the sexual harassment has occurred to your employer or the courts if you wish to lodge a claim. The commission’s officer or your employer, however, only needs to balance the probabilities of the events you describe. This means that the proof you need to offer is much less severe than if you were making criminal allegations, which must be proven beyond a reasonable doubt.
Documentation is very important as you prepare to lodge your claim. You should describe the events in as much detail as you can remember — the time, place, what the person was wearing, what they said and what occurred. This won’t only support your claim but can also help you remember the events when your HR director asks you questions or when you meet with your lawyer.
You may want to keep records of your interactions with your employer after you tell them about the events as well. Hide this information from them so they do not influence your documentation in any way.
When it comes time to lodge the claim with the courts, you may want to reach out to a trusted eyewitness or someone you confided in throughout the process to help support your claim.
The courts will weigh your case and evidence, based on the severity of the allegations. If the harassment escalated to sexual assault, or your employer retaliated after you came to them about the issue, this could call for more evidence and witnesses. In these instances, statements must be established with “comfortable satisfaction,” i.e., that the case has been made convincingly.
Compensation and types of cases
Depending on the severity of the case, you will file either a civil or a criminal lawsuit against the abuser. The level of proof you must bring forward for both types differs greatly.
For a criminal lawsuit, you must prove in front of a judge and jury beyond a reasonable doubt that the abuser committed these crimes. The burden of proving these issues rests with the accuser (and their lawyer).
In a civil case, you will follow the steps mentioned above, in which the decision-maker must balance the probabilities of the events occurring. The victim is also eligible for compensation including emotional damages.
Even if the abuser is not found guilty in a criminal case, an accuser can still file a civil claim against them.
Bystander action against sexual harassment
Co-workers play a huge role in supporting victims in their pursuit of justice and peace at work. Discrimination isn’t right for any group of people for any reason. Work colleagues can help with witness testimony of the events or just listen to the target of aggression.
Lending an ear and offering advice can help give the victim the courage they need to speak with their manager and make a claim. Sometimes, after a claim has been made, the harassment stops and solutions that work for all parties are found.
If you are a witness to the sexual harassment of your co-worker, you can — with their consent — lodge a complaint to the commission in your state or territory on their behalf. You could be the difference between a peaceful and hostile work environment.
Why your lawyer will be your best advocate
A sexual harassment lawyer can help you file a workplace sexual harassment claim successfully. Your lawyer will complete due diligence to ensure you are covered should anything happen along the claims process, such as an employer not giving the claim its rightful consideration.
The law firm of Gerard Malouf & Partners can help you recall the events of your harassment, compile the evidence you need and even help you formulate what you will say to your employer when you bring the claim forward.
Unlawful sexual harassment can create extreme discomfort at your workplace for the victim and everyone who sees or knows about the harassment. Additionally, you could come to find that the harasser was victimising more people than you, and bringing your case forward has given your co-workers the confidence they needed to do so as well.
We hope that with this information at hand, and the support of our workplace sexual harassment lawyers, you feel confident in coming forward with your claim. Contact us today for a confidential no-obligation consultation to understand your case.
