by Oct 10, 2021All Posts, Human Resources

The Answer Is Not as Simple as You May Think.

First let’s address the legal definition of sexual harassment, in this case with thanks to the Australian Human Rights Commission.

“Sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.”

What it is important to note here, however, is that this situation can arise without the behaviour causing the unwelcome attention being intentional.

For example, sexually-based humour, teasing and general gossip of a sexual nature can easily be a part of daily life in a workplace. This sort of thing is often referred to as ‘banter’ and is accepted by people in the workplace so that they can be a part of ‘the group’ of employees with whom they work.

What gets ignored in this situation are the consequences of the ‘banter’.

After all, there is no intention to directly offend or humiliate another person, the actions of telling jokes with a sexual connotation, circulating sexual images or other material, or even using inappropriate nicknames for work colleagues could all be construed as sexual harassment.

And employers need to understand that they may also become liable for a sexual harassment complaint arising from such behaviour.

When the conversation moves from generalised banter to target individual employees with abuse or teasing, the matter becomes even more dangerous.

However, even banter can offend a co-worker who has an expectation that they have a right to work in a workplace environment that is not permeated by regular sexual banter and innuendo.

This was well described by the Equal Opportunity Tribunal of Western Australia when they made the following statement:

“…it is now well established that one of the conditions of employment is quiet enjoyment of it. That concept includes not only freedom from physical intrusion or from being harassed, physically molested or approached in an unwelcome manner, but extends to not having to work in an unsought sexually permeated work environment.”

It is important for employers to be aware of this danger and to ensure that they discourage any behaviour in the workplace that could reasonably be considered to be sexist in nature or offensive to others.

They should at all times encourage an environment in which employees show respect for each other and be aware of the sensitivities of their fellow workmates. In this way, they will be less likely to provide the basis for a sexual harassment complaint.

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