If you’ve experienced sexual harassment in the workplace it’s important to seek independent legal advice early on, as early intervention can greatly affect the process and its outcome. A lawyer can review your workplace policies, advise you on your rights and suggest how best to raise and frame a complaint.
Each complaint is different and the legal process will vary accordingly. We summarise how the process unfolds, including key factors and considerations, strategies, outcomes, and protections available to employees who make complaints about sexual harassment in the workplace.
Assessing the claim
Initially, a lawyer will obtain a detailed statement from a client to better understand what has occurred, and assess the following primary considerations:
1. How long has it been since the sexual harassment occurred?
There are time limits for submitting sexual harassment complaints to external bodies – such as the Australian Human Rights Commission – that deal with anti-discrimination matters.
Generally, you must make a complaint to such bodies within 12 months of the conduct having occurred.
2. Does the conduct constitute sexual harassment?
Sexual harassment is broadly defined in anti-discrimination laws. It includes unwanted sexual advances, unwelcome requests for sexual favours, and any unwelcome conduct of a sexual nature. Examples of behaviour that could constitute sexual harassment include unwelcome physical contact; verbal remarks of a sexual nature; and the display of sexually explicit images in the workplace.
3. Is the employer liable?
An employer can be held vicariously liable for acts of sexual harassment committed by an employee in connection with their employment.
An employer will successfully defend a claim for vicarious liability if it can establish that it took all reasonable steps to prevent the harassment. Regard is given to the following matters in determining whether the employer took all reasonable steps to prevent the harassment:
- whether the employer has a written policy concerning sexual harassment in the workplace;
- whether the policy contains sufficient details including, a description of unlawful sexual harassment, an outline of the sanctions that may be imposed if the policy is breached, and details regarding the procedure for making complaints and reports about policy breaches;
- whether the policy is actively endorsed by the employer, that is, through induction training and regular workplace training; and
- the steps taken by the employer after it became aware of alleged sexual harassment in the workplace.
4. What is the loss and damage suffered as a result of the harassment?
Damages are generally assessed by comparing the position of the employee before and after the discriminatory conduct.
It is therefore important to assess whether the sexual harassment has resulted in the employee suffering economic and/or non-economic loss and damage. In some cases, medical evidence will be obtained to assess the loss and damage suffered.
5. What outcome is the client seeking?
Each case is unique, so the outcome being sought by the client will vary. Outcomes can range from compensation to reform in the workplace. At the outset, a lawyer will seek to understand what a client wants to achieve by way of resolution of the dispute, and tailor the strategy accordingly.
Health and wellbeing considerations
A client’s health and wellbeing is an important consideration in any sexual harassment dispute. Sexual harassment can often have a profound effect on a complainant’s mental health. In such cases, a lawyer will take into consideration medical advice concerning any effect that certain complaint resolution processes may have on the client, and devise a strategy that is consistent with protecting the client’s health and wellbeing.
Strategy and options
The above factors and considerations will influence the approach taken in resolving the dispute.
In some instances, the best course of action may be to assist an employee to engage directly with their employer to resolve the dispute using internal processes.
In other cases, the dispute will have progressed to a stage where that’s no longer an option, As such, the appropriate course of action may involve an escalation of the complaint to an external body, such as the Australian Human Rights Commission.
Most external bodies provide parties with an opportunity to resolve complaints swiftly and discretely via informal dispute resolution processes,
For example, the Australian Human Rights Commission will investigate complaints and convene a conciliation conference, where the parties to the dispute, with the assistance of a conciliator, are given an opportunity to negotiate a resolution, prior to commencing a claim in court.
Employees who make complaints about sexual harassment in the workplace have protections from adverse treatment enshrined in law.
The Sex Discrimination Act 1984 (Cth) prohibits the victimisation of a person who makes a complaint about sexual harassment.
Similarly, the Fair Work Act 2009 (Cth) prohibits the taking of adverse action (for example, demotion or dismissal) against an employee who makes complaints in relation to their employment, which can include complaints about sexual harassment in the workplace.