Two in five women in Australia have experienced sexual harassment in the workplace. Let that sink in for a moment. With #FiredUp, Refinery29 Australia makes an ongoing commitment to spotlighting this serious and pervasive issue through survivor interviews, informative features and ongoing news coverage. The ultimate goal? To help dismantle workplace sexual harassment and assault in Australia.
Believe it or not, workplace sexual harassment is not a crime in Australia; the police can’t go after your harasser or take them to court.
Instead, sexual harassment — including behaviour that occurs in the workplace — is a civil offence under the Sex Discrimination Act 1984 (Cth). This is a commonwealth piece of legislation, meaning that it applies to you regardless of where you live in Australia.
Sexual harassment is any behaviour that:
1. Would be considered offensive, humiliating, or intimidating by a reasonable person; and
2. Is unwelcomed by you
You can still take action against your perpetrator. Below, we break down your options; from challenging the behaviour, to reporting it to your workplace, going to the Human Rights Commission, or even suing your harasser or employer in court.
Challenge the behaviour when it happens
Dr Skye Saunders, Associate Law Professor at the University of New England and an expert in sex discrimination law, says you can try to challenge the harassing behaviour when it happens.
For example, if someone makes an unwanted sexualised comment, you could reply with: ‘Say that again?’ followed by, ‘Sorry, I will need you to repeat that. I must have misheard you because that didn’t sound right.’
Saunders says that this is effective because “sexual harassment is a quest to feel powerful or to demonstrate that there is a type of male power being performed”.
“The beauty is that this indirect method stops the demonstration in its tracks. It flips the narrative and the recipient of the unwelcome comment has regained her control,” she says.
You could also flip the power dynamic and force the harasser to confront their behaviour by asking them why they just acted the way they did.
Alternatively, you could try having a direct and frank conversation with the person who harassed you about their actions.
If you go for the last option, Saunders recommends that you:
- Be specific about what you would like to talk to them about (“I’d like to talk with you privately about a comment that you made when we were in the tea room this afternoon. Are you free to chat now?");
- Use simple, factual statements to describe your experience;
- Tell them how the behaviour made you feel and clearly state that you don’t want to feel that way at work again.
Of course, you may not feel comfortable or safe confronting your harasser over their actions. This can be made even more challenging if your harasser is someone more senior in the organisation, or someone that you report to.
If you don’t feel safe to speak with your harasser, or if you do speak with them and their response is anything less than satisfactory, you can report the harassment to your employer or HR manager.
Report the behaviour to your employer
Your workplace should have a sexual harassment policy in place, which sets out how employees can report sexual harassment. If you don’t know where your workplace’s policy can be found, you can start by raising what’s been happening with your HR manager or your line manager.
Before you speak to them, Michael Bradley, managing partner at Marque Lawyers, recommends collecting as much evidence of the harassment, ideally as it is happening.
“Keep records of everything, such as inappropriate text messages or emails,” he says.
“If the harassment is verbal or [in person behaviour], keep a log, like a diary of every incident with dates and times. The better your evidence, the stronger your case is and the harder for your workplace to bury your claim or not deal with it effectively.
Talking to someone at work about what has been happening might feel uncomfortable, even scary. But Saunders reminds us that “this is a sign that we are living in the courageous zone, and this is the space where change begins”.
When reporting workplace sexual harassment, Saunders recommends that you:
- Remind yourself that what you are doing is in line with workplace policy, Commonwealth law, and the goal of making your workplace safe and healthy. If you want, you can even say this to your manager at the start to help frame the conversation;
- Keep your language factual and clear. Be specific about what happened, when, and where;
- Refer to the workplace policy or the Commonwealth law around sexual harassment, and say that you understand the behaviour you experienced or witnessed it being at odds with that;
- Explain how the behaviour made you feel, when it happened and in the time since. For example: ‘I have felt that my confidence has decreased since overhearing the joke about my breasts. It’s deeply humiliating to even think about the way that they laughed at my expense and I am worried that it’s impacting my mental health.’
Bradley says that you also have the right to have a support person, such as a colleague or someone outside of the workplace, come with you to the meeting with your manager. Not only can they act as a witness to the complaint being made, but provide you with emotional support.
“It is awful to be the victim of sexual harassment, but every step you take [in dealing with the harassment] is going to be potentially traumatic,” he says.
“Not every employer will respond well, not every HR manager is good at dealing with this. You may get a negative, or defensive or dismissive response, and it is a good idea to go in armed with the best case you’ve got, appreciating that you may not get a great response, and having the support there so that you don’t feel isolated.”
Remember that your employer is obligated to take reasonable steps to protect you from workplace sexual harassment and investigate the complaint fully.
They have a duty to ensure that you are treated with procedural fairness. This includes protecting your confidentiality, upholding your dignity, and making sure that you aren’t discriminated against because you made the complaint.
Complain to the Human Rights Commission
If you aren’t satisfied with how your report is handled at work, you can also make a complaint about your harasser and/or your employer to the Australian Human Rights Commission.
The Commission’s powers are relatively limited. They will assess your claim and can facilitate a conciliation process. This is where they bring you and the person or employer you are complaining about together to try and talk through the issues and reach an agreement.
Go to court
While sexual harassment isn’t a crime, you can sue your harasser in civil court. You may also be able to make a claim against your employer, since they can be found vicariously responsible for the actions of their staff.
But Bradley warns that suing for sexual harassment can be very risky for survivors. This is because if you lose the case, you will have to pay not only your legal fees, but the legal fees of the other side: “a powerful disincentive,” he says.
“It is a pretty unequal playing field - in some cases, employee vs employer. And if you are at risk of paying your employer for costs, you’d be brave [to sue].”
Although sexual harassment isn’t a crime, some examples of sexual harassment can also constitute sexual assault or stalking, which are criminal offences.
For example, Bradley says that any form of physical or sexual contact without your consent is going to be considered a crime.
Similarly, if a boss or colleague propositions you for sex, that may be sexual harassment. But it could become stalking if, after you turn them down, they send you multiple unwanted texts unrelated to work.
If you think that the harassing behaviour has crossed over into criminal behaviour, Bradley recommends reporting what has happened to the police, who will be able to tell you.
Remember: you are not alone. There are services and support networks available to provide you with legal, practical, and emotional support if you, or anyone you know, has experienced sexual harassment in the workplace.