Stopping sexual harassment at work and the new stop orders regime
Part 1 – Sexual Harassment in the workplace
Historically, sexual harassment has been viewed from the prism of being an issue of:
Criminal law (e.g., Sexual assault type cases)
Discrimination
The former obviously has had a very serious prism to it and is a topic that has much to do with criminal justice and criminal law more generally.
The latter has addressed issues of sexual harassment and discrimination through the Sex Discrimination Act 1984 (Cth) or SDA, which makes conduct of a discriminatory nature based on sex illegal. For instance, this would cover discrimination of the following grounds:
5A Discrimination on the ground of sexual orientation
5B Discrimination on the ground of gender identity
5C Discrimination on the ground of intersex status
6 Discrimination on the ground of marital or relationship status
7 Discrimination on the ground of pregnancy or potential pregnancy
7AA Discrimination on the ground of breastfeeding
7A Discrimination on the ground of family responsibilities
Have the accepted definitions in the SDA always been applied to a workplace context anyway?
To a large extent, yes.
It can safely be assumed that most employers will have policies and codes of conduct that have accepted sex discrimination and by inference sexual harassment as illegal and a violation of accepted workplace practices and thereby via extension leading to serious misconduct and discriminatory practices.
Many workplace policies and codes of conduct expressly state this. This would usually be found in the bullying and harassment section of any workplace policy.
How do we define sexual harassment?
In short, Sexual harassment refers to an unwelcome sexual advance, an unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature in circumstances where a reasonable person would consider that the person harassed would be offended, humiliated or intimidated. It is unlawful for any workplace participant (i.e., an employer, employee, contractor or a partner in a partnership) to engage in sexual harassment with another workplace participant in the workplace.
Conduct of a sexual nature includes physical touching, the making of sexually suggestive comments or jokes, and the sending of sexually explicit images via electronic media. In determining whether sexual harassment has taken place, the personal backgrounds and relationship between the parties as well as any other relevant circumstances are considered.
Also, each State and Territory has its own laws that prohibit sexual harassment and other forms of discrimination.
A recent decision found that marketing material was deemed to be sexual harassment
In Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147, the NSW Court of Appeal reinforced that ‘horseplay’ and jokes with a double meaning are not immune from being characterised as sexual harassment.
In this matter, Ms Yelda was employed by Sydney Water Corporation as a Customer Liaison Officer. She agreed to have her photo taken for a work health and safety campaign that was being created by Vitality Works.
When Ms Yelda saw the poster with her photograph on it, she felt humiliated and offended. The slogan above her photograph said, ‘Feel great – lubricate!’ The poster was placed in full view for other employees to see and was located outside the lunchroom and the men’s toilet at Ms Yelda’s workplace.
The insensitive conduct was striking, and Ms Yelda brought proceedings in the NSW Civil and Administrative Tribunal (NCAT) alleging that she had been sexually harassed and discriminated against as a result of the poster, in contravention of the Anti-Discrimination Act 1977 (NSW).
NCAT accepted that sexually suggestive jokes and comments containing a double meaning can constitute ‘other unwelcome conduct of a sexual nature’.
At first instance, NCAT found that Sydney Water Corporation and Vitality Works sexually harassed Ms Yelda in contravention of the Act by displaying the poster. Sydney Water Corporation also discriminated against Ms Yelda on the ground of sex by subjecting her to detriment, since it treated her differently to male employees and caused Ms Yelda to be offended and humiliated.
Subsequently, Ms Yelda was awarded $200,000 in general and aggravated damages, with Sydney Water and Vitality Works ordered to pay $100,000 each. In assessing damages, NCAT accepted that, by reason of the display of the poster, Ms Yelda had suffered serious and prolonged pain and suffering and injury to her feelings.
The matter was then appealed.
In challenging the decision, Vitality Works claimed that its conduct did not amount to ‘other unwelcome conduct of a sexual nature’. Vitality Works argued that, while Ms Yelda did not specifically consent to the use of her photograph on the poster, the failure to obtain informed consent was not relevant to any sexual harassment claim because it was not conduct of a sexual nature.
The Court of Appeal disagreed with this contention. It concluded that Vitality Works’ conduct was plainly unwelcome conduct of a sexual nature. It was deemed irrelevant that the poster was not sexually explicit in nature, or that any sexual message was conveyed as a joke through a double meaning.
The Court of Appeal held that the poster constituted sexual harassment even though Vitality Works did not intend to sexually harass Ms Yelda. It was the conduct, affect and perception of the message by the party subject to the material that was paramount.
What does the Vitality Works decision mean for employers and what does it say about changing social norms?
In relation to norms, we are talking about contemporary societal norms, and these are not really issues of ideology or conflicting industrial relations standards.
For instance, in the Vitality Works decision, the Court of Appeal importantly noted that, in determining objectively whether particular conduct meets the definition of ‘other unwelcome conduct of a sexual nature’, ‘context is everything’. The meaning of language changes over time as does societal norms, including common understandings about what is and is not conduct of a sexual nature.
Dismissing the employee’s concerns on the basis that the poster was “a joke” is unacceptable. Employers must also be mindful that aside from health and safety concerns (including discrimination and Workcover claims), the reputational damage for such conduct would be tremendous.
For further information please contact:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
Continue reading part 2 in the article series: Stop orders (Sexual Harassment)
