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What to know about sexual harassment claims in the workplace

In early 2021, Australia experienced another wave of #MeToo protests, known collectively as the March4Justice. The tolerance for unwanted sexual advances and harassment – at any time and especially in the workplace – had reached its end for the citizens of Australia.  

It goes without saying everyone deserves a safe work environment. To ensure that safety in the workplace is available to everyone, employers have a responsibility to educate employees on what to look for and the consequences of sexual harassment

But if your company’s best-laid plans fail and sexual harassment does happen at work, you need to know what to expect when you file a claim. In this blog, we will delve into the process so you can feel confident when you decide to speak up and take action about the harassment you have experienced. 

How is workplace sexual harassment defined?

According to Safe Work Australia, sexual harassment is defined as “any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature in circumstances where a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated.”  

This means that anyone who is made to feel uncomfortable by someone’s sexual advancements could be a victim of sexual harassment. This behaviour is also subject to a case-by-case basis, depending on an individual’s level of comfort in the situation. What may be considered sexual harassment in one instance may not be in another. 

 The Fair Work Act, which passed in 2009, ensures the protection of employees and employers in situations of negative behaviour in the workplace. The act provides help for entities who make a sexual harassment claim against discrimination or unsafe working environments.

The Fair Work Act aims to protect all workers including:

  • Interns
  • Apprentices or trainees
  • Outworkers
  • Part- and full-time employees
  • Students working for experience
  • Contractors or subcontractors
  • Volunteers

 Sexual harassment can happen anywhere. Whether the abuse happened once or continuously does not change the fact that you may be experiencing sexual harassment.

To better identify what sexual harassment looks like and if you have been a victim of it, here are some major examples of the behaviour:

  • Inappropriate physical contact
  • Leering
  • Requests for sexual favours
  • Suggestive comments or jokes
  • Sexually explicit content including photos, email or texts
  • Insults or taunts related to sexual intent
  • Intrusive questions about your body or life
  • Unnecessary familiarity, such as unwanted touching
  • Unwanted invitations for dates 

If you and the offender were consensual at one point, but the relationship has taken a dangerous turn, you should consider whether or not the relationship falls under sexual harassment. This could be a situation in which the offender has put your job or safety at risk as a result of your sexual relationship. Even if — especially if — their threats cause you to feel intimidated or humiliated, this constitutes sexual harassment.

For example, if you and your co-worker had a sexual relationship but your decision to end it resulted in the other party threatening you with some type of public embarrassment, the once-consensual relationship has become sexual harassment. In cases such as these, the harassment should be escalated to management.

If you’re unsure whether you should escalate the situation, you can always speak with a lawyer or counsellor for advice.

Is sexual harassment a criminal or civil offence?

While the Sex Discrimination Act makes sexual harassment a civil, not a criminal, offence there are instances in which it could be considered criminal law, such as:

  • Sexual assault
  • Stalking
  • Physical assault
  • Indecent exposure
  • Obscene communication over phone calls, letters or texts 

The distinction between civil and criminal cases lies in how the court handles the case. For civil offences, the victim will need to prove that, on a balance of probabilities, the action or occurrences happened. Criminal cases need to prove beyond a reasonable doubt that the offence occurred, with substantiated evidence and testimony. In either case, it’s important to seek legal advice and assistance, because navigating this landscape can quickly become overwhelming while you deal with the emotions that harassment brings up.

When is an employer liable for unwelcome conduct in the workplace?

Determining liability in a sexual harassment case will depend on how many steps the employer took to resolve the problem and what level of seniority the offender holds within the company. 

 The employer should have an anti-harassment policy in place, providing training for all employees about how to identify signs of sexual harassment and how to respond to it. Businesses should also have official procedures to follow, including remedial action, if a harassment incident occurs.  

If none of these actions is taken or just some are implemented, then an employer is liable for a failure to prevent sexual harassment. This is referred to as vicarious liability. Because the employer did not take every step possible to prevent and resolve a harassment complaint, they are considered as much at fault as the offender.

What is the process of handling a sexual harassment claim?

There are two types of claims that can be made: informal and formal. Below you’ll find more information on both and what happens if no resolution is reached.

Informal

Your supervisor or human resources leader should be the entity that you bring your complaint to (if they are not the offender, and the environment is safe to do so). When you file a complaint with your employer, they should have a process for mitigating it, knowing that a sexual harassment offence is sensitive, often complex and at times volatile. 

 Complain procedures should include:

  • Documentation and an explanation
  • Informal and formal complaint options
  • Timely, fair and confidential investigation
  • Trained personnel to administer the investigation
  • A foundation in the principles of natural justice
  • An internal investigation
  • A record of the investigation
  • No retaliation policy

If you make an informal complaint to your employer, you are indicating your intention to seek resolution, not simply a substantiation of the complaint. Informal victims will try to resolve the issue themselves with the harasser and may seek advice from their supervisor. 

In these cases, the supervisor may try to speak with the harasser on the victim’s behalf and reiterate their policies. The supervisor may also take action if they notice harassment occurring even if no complaint has yet been made. 

Informal claims are more appropriate when the allegations are not serious and when the victim is hoping to maintain a working relationship with the offender. 

 However, the victim may make their complaint formal or speak with a lawyer at any time during the process.

Formal

A formal complaint can be made in instances where there was no resolution or the offence was more serious, such as violent physical contact. Other instances may condone a formal complaint as well, such as if:

  • The harasser is a senior staff member.
  • The victim is also alleging victimisation. 
  • The allegations were denied by the harasser and the victim wants to proceed with further investigations.
 Making a formal complaint means the allegations need to be proven, but if the harassment was never witnessed by any other party, that does not disqualify the claim. While providing evidence in cases like this can be tricky, there are a few ways in which a victim can prove it happened. 

If you are a victim of harassment, you should keep a journal of your experience and speak with friends and family about what is happening. Though speaking about painful experiences may not be ideal, those you talk to can help you substantiate the claim. You can seek out professional help from a counsellor as well, as their notes will also help your case. 

The employer may also notice any requests for department transfers or desk changes as evidence of the harassment as well. They will also need to conduct extensive training with the alleged harasser and follow up with the complainant after the claim has been made. 

If management has not taken necessary action

If you have experienced or are experiencing sexual harassment in the workplace and your employer is not handling the situation properly, you have other options. You can make a claim with the Australian Human Rights Commission, which will investigate the claim on your behalf. They will try to find a resolution through conciliation by acting as an impartial third party. 

 Speaking with a third party or sexual harassment contact officer is a viable option if you are an employee at a small business, if management is predominately the opposite sex or if the offender is a member of the management team.

Although most cases can be dealt with internally or through the Commission, there are instances in which the Commission may be unable to come to a resolution. In such situations, the case can be brought to court.

How can a lawyer help me navigate a harassment complaint?

Working with a legal professional can be exponentially helpful, even in the early stages of making a complaint. Lawyers are licensed people who can provide advice and give insight into the proceedings. They may also be able to help you decide if you have enough evidence to file a formal complaint or how to build your case before appearing to management.

Before making a claim

Before going to management, look over your company’s policy — if they have one — regarding sexual harassment. Remember, the law does not require you to make a claim with management or human resources if the harasser is part of this group. A lawyer can help you identify to whom your complaint should be made.

Understanding the sensitivity of a situation like this, a lawyer can help you outline what you will say to your employer as well. They’ll give you guidelines for what to include in your statement and how to put together a description of the harassment. A lawyer can also give you the confidence you need to speak up about your experience.

Documentation is always necessary when filing a sexual harassment claim and your lawyer can help you compile the evidence as well as monitor how your employer is handling the situation.

 A victim of sexual harassment may feel confused about the circumstances or emotionally drained from dealing with it and may not know the proper procedures or how to take the next steps. A sexual harassment lawyer is an excellent resource to utilise as a guide during an otherwise emotionally taxing state. 

During the investigation

Your employer is legally required to take action after a sexual harassment claim has been made. They also cannot take any retaliatory action that will affect your employment. Knowing what to do if any of these steps are violated is something an experienced lawyer can help you navigate. Your lawyer should check in with you while the investigation is underway, to ensure your employer is handling it professionally and within the scope of the law.

Despite what is expected of them, your employer may still retaliate against you after your claim has been filed. This can come in the form of write-ups or even termination, usually without any explicit statement that retaliation is their intent. Your employer may also exclude you from meetings, events or certain projects after you file your claim, and a lawyer can help you examine these events to determine if they are forms of retaliation.

Sometimes, however, an employer may not proceed with an investigation at all. In this case, you should feel empowered to file a lawsuit against them for mismanaging a sensitive and confidential matter. A lawyer can help you determine when you should take action and how to proceed. They’ll discuss the advantages and disadvantages of filing a lawsuit against your employer. 

Having a lawyer as your resource during a turbulent period can be a haven during a turbulent time, emotionally and legally. Contact Gerard Malouf & Partners for no-obligation advice about your sexual harassment claim.

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