Sexual harassment

Sexual harassment

Sexual harassment is:

• any unwelcome sexual advance, request for sexual favours or behaviour of a sexual nature
• that makes a person feel offended, humiliated, or intimidated
• that a reasonable person in the circumstances would anticipate the possibility that the person would feel offended, humiliated, or intimidated.

It can be a one-off incident or repeated behaviour. It can happen during work hours or outside of work.

You can experience sexual harassment from your supervisor, co-worker or manager. It can also come from customers, clients, visitors or other third parties in your workplace.

Examples of sexual harassment include:

• unwelcome touching, hugging, or kissing
• staring or leering
• sexually suggestive comments and jokes 
• referring to co-workers using suggestive or sexualised names
• unwanted invitations to go out on dates
• requests for sex
• intrusive questions about a person’s private life or body 
• sexually explicit emails or text messages
• a hostile workplace environment.

Some forms of sexual harassment, such as sexual assault or physical assault, are also a criminal offence. Sexual harassment of a child worker may constitute the offence of child sexual abuse. If your child is under 18 years and has experienced sexual harassment at work, you should speak to the police or a lawyer.

Sexual harassment is also a form of unlawful sex discrimination.

For more information, see Discrimination at work.

Your employers legal obligations

Your employer has a duty of care towards you and other workers to ensure your health and safety while you are at work.

Your employer must ensure, so far as is reasonably practicable, that you and other workers are not exposed to risks to your psychological or physical health in the workplace. This includes risks of harm from sexual harassment. Where it is reasonably practicable, your employer must eliminate health and safety risks at work. If this is not possible, these risks must be minimised so far as is reasonably practicable.

Your employer also has a duty to prevent sexual harassment under Sex Discrimination laws. Under this duty, your employer must take reasonable and proportional steps to eliminate discrimination in the workplace, including:

• sex discrimination
• sexual harassment
• sex-based harassment
• conduct that amounts to subjecting a person to a hostile work environment on the grounds of sex.

Your employer could be liable for conduct involving sexual harassment if they have not taken enough steps to prevent this from happening and/or do not respond appropriately when they become aware of the conduct.

If your employer does not take all necessary steps to prevent bullying and sexual harassment in the workplace, they may also be breaching Work Health and Safety (WHS) laws.

For more information, see Understand your work health and safety responsibilities on the NSW Government website.

Taking action against sexual harassment

Sexual harassment is against the law. If you are experiencing sexual harassment, you may  decide to do the following non-legal actions:

• speak to someone at your workplace that you feel comfortable with about the issue
• make an internal complaint about the sexual harassment to your manager or Human Resources Department
• make an insurance claim
• speak to your GP or counsellor.

If you decide that you want to take legal action, you may be able to do the following:

• apply for workers compensation
• apply to the Fair Work Commission for an order to stop the behaviour if you still work there
• complain to the Fair Work Ombudsman if someone does not comply with a Fair Work Commission order to stop the sexual harassment
• report the behaviour to SafeWork NSW
• report the behaviour to the Fair Work Ombudsman
• complain to Anti-Discrimination NSW
• complain to the Australian Human Rights Commission
• report the issue to police if you have experienced serious sexual harassment or sexual assault

Before you do any of these things, you should get legal advice about all the options available to you in your situation.

For more information, see Taking action against sexual harassment.