Sexual harassment
Students may feel more comfortable discussing matters of a sexual nature with an authority figure who is not their parent or carer.
Young people need to know the distinction between sexual harassment and sexual interaction.
Sexual harassment is unwelcome sexual conduct which makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances. Sexual harassment of persons under 18 years of age can be a serious criminal offense.
Sexual harassment can take various forms. It can involve:
- unwelcome touching, hugging or kissing;
- staring or leering;
- suggestive comments or jokes;
- sexually explicit pictures, screen savers or posters;
- unwanted invitations to go out on dates or requests for sex;
- intrusive questions about an employee's private life or body;
- unnecessary familiarity;
- insults or taunts based on your sex;
- sexually explicit emails or SMS messages;
- accessing sexually explicit internet sites;
- behaviour which would also be an offence under the criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.
Sexual harassment is not sexual interaction, flirtation, attraction or friendship which is invited, mutual, consensual or reciprocated.
Sexual harassment is a legally recognised form of sex discrimination. Sexual harassment and sex discrimination are both unlawful under the Sex Discrimination Act.
Is it sexual harassment?
The legal test for sexual harassment in the federal Sex Discrimination Act has three essential elements:
- the behaviour must be unwelcome;
- it must be of a sexual nature;
- it must be such that a reasonable person would anticipate in the circumstances that the person who was harassed would be offended, humiliated and/or intimidated.
Whether the behaviour is unwelcome is a subjective test: how the conduct in question was perceived and experienced by the recipient rather than the intention behind it.
Whether the behaviour was offensive, humiliating or intimidating is an objective test: whether a reasonable person would have anticipated that the behaviour would have this effect.
The unwelcome behaviour need not be repeated or continuous. A single incident can amount to sexual harassment.
A complaint of sexual harassment will not necessarily be dismissed because the person subjected to the behaviour did not directly inform the harasser that it was unwelcome. However, there does need to be some indication from the person's conduct or the surrounding circumstances that the behaviour was in fact unwelcome.
What can you do?
It is also good practice to have a process to follow and a designated OHS Representative to contact in alleged cases of sexual harassment.
All aspects of sexual harassment are explained in much more detail at the HREOC website:
http://www.humanrights.gov.au/sex_discrimination/workplace/code_practice/data/1_what.html
If an employee thinks they have been sexually harassed, they can contact HREOC on 1300 656 419 (local call) or 02 9284 9888