Eliminating workplace sexual harassment

Our current system for dealing with workplace sexual harassment places a heavy burden on individuals to make complaints but doesn’t ask enough of employers to prevent harassment in the first place.

Sexual harassment at work is widespread and has serious impacts

The majority of Australians have experienced sexual harassment at some point in their lifetime.

Sexual harassment continues to be an unacceptably common feature of Australian workplaces, with one in 3 workers experiencing workplace sexual harassment in the last 5 years.

A staggering 95% of the sexual harassment complaints that come to us are work related.

Half of incidents are repeated and of those, half are ongoing for more than one year.

And these figures are not improving. In fact, the number of people reporting workplace sexual harassment has tripled in the last two decades. While it is unclear whether this is due to an increase in sexually harassing behaviours, or to greater awareness of the types of behaviours that constitute sexual harassment, this is clearly a problem that affects millions of Australians.

Research clearly demonstrates the social, physical, emotional and economic costs of sexual harassment on individuals, organisations and the broader community. The most common consequences of sexual harassment are the adverse impact on a person’s mental health, self-esteem and confidence and decreased job satisfaction.

Sexual harassment is still under-reported

The majority of people who are sexually harassed at work do not make a formal report or seek support or advice. For example, the Australian Human Rights Commission’s 2022 national survey showed that fewer than one in five people (18%) who experienced workplace sexual harassment in the last 5 years made a formal report or complaint about the harassment. Two in 5 people (40%) who made a formal report or complaint said that no changes occurred at their workplace as a result.

There are many reasons why individuals do not report sexual harassment, including uncertainty about the law, harmful community attitudes, fear of victimisation or adverse consequences, lack of job security, inadequate support to make a complaint, lack of faith in the complaint system, trauma and shame.

Sexual harassment has disproportionate consequences and is often combined with other types of discrimination

Sexual harassment disproportionately affects some people including women, young people, LGBTIQ people, people with a disability, First Nations Peoples and people from multicultural and multifaith backgrounds. For instance, 56 per cent of First Nations Peoples, 48% of people with a disability and 46% of LGBTIQ+ people experienced workplace sexual harassment in the last 5 years compared to 33 per cent of the broader population.

Furthermore, sexual harassment is experienced together with other forms of discrimination such as discrimination on the basis of race, religion, disability and sexual orientation and gender identity.

Recognising these overlapping forms of discrimination is a vital step to preventing sexual harassment within our community.

The Commission needs stronger powers to enforce the law

While the Commission uses its education, dispute resolution and independent review functions to facilitate compliance with the Equal Opportunity Act, we have limited powers to enforce the law and address systemic issues.

The Commission’s powers to enforce the law should be strengthened

Strengthening our enforcement powers would enable us to enforce compliance with the law and ensure organisations are taking necessary steps to prevent harassment from occurring.

The Commission should be empowered to undertake public inquiries, require people to attend or provide documents or information for the purposes of an inquiry, and require organisations to make changes to their policies and processes for managing sexual harassment. Failure to comply should be enforceable through VCAT.

The Commission should be given stronger investigation and enforcement powers to enable us to enforce compliance with the law and ensure organisations are taking necessary steps to prevent discrimination.

These powers would enable the Commission to target the underlying issues that perpetuate systemic discrimination and sexual harassment.

Our role is to protect and promote human rights and eliminate discrimination, sexual harassment and victimisation, to the greatest extent possible. We use a range of tools and functions to advocate for the elimination of sexual harassment.

To help employers fulfil the positive duty, the Commission has released a new guideline and an interactive online response tool focused on creating safer, more respectful workplaces.

Our Guideline on Preventing and responding to workplace sexual harassment outlines six minimum standards that employers must meet to comply with their positive duty to eliminate sexual harassment. It provides essential information and recommendations for small, medium and large organisations, applying to diverse workplace settings and across a range of sectors and industries.

The new edition of the guideline and its accompanying quick guide are paired with an innovative online sexual harassment support and response tool. This free and confidential interactive chat tool guides employers, victim-survivors and bystanders through information about sexual harassment and their rights and responsibilities. Throughout the year we deliver face-to-face education sessions covering workplace sexual harassment. In the 2021-22 financial year, we delivered 154 sessions to nearly 2000 people across the public and private sectors.

In 2022 the Commission conducted an investigation into Bakers Delight Holdings’ compliance with the positive duty to prevent sexual harassment, applying the standards set out in the guideline. With the full cooperation of Bakers Delight Holdings the Commission investigated the adequacy of frameworks for preventing and responding to sexual harassment in its company-owned workplaces and franchise network.

The investigation found that, like for many duty holders, there were gaps in Bakers Delight Holdings’ compliance with the positive duty. During the investigation, Bakers Delight Holdings had already begun to take steps to address these gaps and at the conclusion of the investigation Bakers Delight Holdings entered into a Compliance Agreement with the Commission, agreeing to take further steps to comply with the Act.

The Commission made a submission to the national inquiry into sexual harassment in Australian workplaces, making 15 recommendations. The Australian Human Rights Commission supported many of our recommendations and ultimately made a recommendation for an enforceable positive duty to prevent workplace sexual harassment. This has now been implemented by the Commonwealth Government.

Our submission to the exposure draft of the Gender Equality Bill also made recommendations to strengthen the Equal Opportunity Act.

In 2018, the Commission developed ‘Raise it: Conversations about sexual harassment and workplace equality’ which was piloted in seven workplaces.

In 2015, we commenced an independent review into the nature, extent, drivers and impact of sexual harassment (and sex discrimination) in Victoria Police. The third report from our review was published in August 2019 and assessed the current state of gender equality, including in relation to sexual harassment, in Victoria Police. We also audited the extent of its implementation of our recommendations from Phase 1 of the review.

In 2015, we intervened in Collins v Smith to provide guidance to VCAT on awarding compensation for sexual harassment.