Workplace sexual harassment and assault is rife in Australian workplaces, seemingly occurring in every industry at every level, explains Attwood Marshall Lawyers Partner and QLD Law Society Accredited Specialist in Personal Injury Law, Jeremy Roche. Sexual harassment or assault is abhorrent and should never be tolerated. So, what can you do?
According to reports, one third (33%) of Australians experience some form of sexual harassment or assault in the workplace. Alarmingly, the true percentage is probably much higher because so many incidents are never reported due to fear of repercussions. Sexual harassment or assault victims often worry about potential ramifications such as not being believed, being marked as “difficult”, being gossiped about, losing out on promotions or other opportunities, losing your job, or effectively becoming unemployable in your profession or industry. Further instances of bullying, harassment or assault could arise.
Sadly, there appears to be no distinguishing features or defined parameters to the contexts in which sexual harassment has occurred across Australia. Sexual harassment allegations continue to plague the Australian workforce from High Court judges, to doctors, performing artists, construction workers, hospitality staff, accountants, lawyers, the defence force, and most recently, members of parliament.
Recent high-profile cases have brought a laser-like focus on this insidious conduct that has been a part of our general workplace culture for generations.
The “Me Too” Movement
“Me Too” started as a hashtag and grew into an international movement fueled by bravery and an overwhelming desire to free the world of sexual violence.
In 2017, the hashtag #metoo went viral. More than 12 million people in the first 24 hours, and over 19 million in the first year, shared their experiences and leaned on the community for support and validation.
The movement helped show the world just how widespread sexual harassment and sexual assault truly is. Me Too provided a platform to empower women to break their silence and share their survival stories. Shockwaves reverberated around the world as the collective uprising said “enough!”
However, despite the laudable efforts of these organisations and additional media coverage, many sexual harassment cases still go unreported. For the minority that are reported and investigated, they are often settled quickly and quietly.
Workplace sexual harassment problems rock Federal Parliament
The Australian Human Rights Commission is undergoing an independent review into the workplaces of Commonwealth Parliamentarians after multiple claims of toxic work culture were made. This review follows Brittany Higgins’ allegations of rape in a minister’s office in 2019, as well as the well-publicized rape allegations made against former Attorney-General Christian Porter, in 1988, which he continues to deny. Other cases involving federal and state members of parliament have also surfaced recently, ranging from alleged inappropriate ‘slut-shaming’ comments by federal MP Eric Abetz, allegations of inappropriate grooming and advances towards female high school students by a senior staffer in MP Craig Kelly’s electoral office, and the online stalking and harassment of two females by a sitting federal QLD MP Andrew Laming. Mr Laming also admitted to taking an inappropriate photo of a female shop assistant while she was bending over stocking a fridge while at work.
The review will build an understanding of Parliamentary workplace culture, with an aim to building a safer and more respectful workplace, establishing clear and effective mechanisms to prevent and address sexual harassment and sexual assault.
The Saturday Herald Sun recently conducted a survey of female MP’s, which revealed a pervasive culture of sexism and sexual harassment. The Victorian members of parliament revealed countless stories of unwanted touching, crude comments and sexual harassment by their colleagues. Several of the survey participants also expressed their concerns about the lack of sufficient mechanisms in place to deal with sexual misconduct, bullying or harassment.
If Parliament cannot establish a safe place for women to work, or even the ability to report and address harassing behaviour, it is no wonder many other workplaces lack the basic procedures and policies to address these issues. These issues have placed enormous political pressure upon Prime Minister Scott Morrison to take action and a string of these high-profile cases has resulted in a number of inquiries and a significant shift in the attitude of the Coalition government.
What statistics tell us about sexual harassment in Australia
According to the 2018 Australian Human Rights Commission (AHRC) survey:
- 72% of Australians over the age of 15 have experienced sexual harassment in their lifetimes;
- 1 in 3 people experience sexual harassment in Australian workplaces;
- Women (39%) were more likely than men (26%) to have experienced workplace sexual harassment;
- The two most commonly reported types of sexually harassing behaviour were sexually suggestive comments or jokes, and intrusive questions about private life and physical appearance;
- Several victims told the Commission about experiencing workplace sexual harassment which began in verbal exchanges and ended in rape or sexual assault;
- Technology is frequently used to perpetrate sexual harassment.
In addition to gender, other factors have shown to increase the likelihood that a person may experience workplace sexual harassment. This can include:
- Workers who are aged less than 30 years old
- Lesbian, gay, bisexual, transgender, queer or intersex workers
- Aboriginal or Torres Strait Islander workers
- Workers with a disability
- Workers from culturally and linguistically diverse backgrounds
- Workers holding temporary VISAs.
Identifying Sexual Harassment and Sexual Assault
Sexual harassment is not always obvious (and is commonly hidden). However, if someone’s behaviour offends, humiliates, or intimidates another person, it can be considered harassment. Unlike bullying, sexual harassment does not need to be a continual behaviour and can be a one-off incident.
Sexual harassment can include:
- Unwelcome touching, hugging, kissing or cornering someone
- Inappropriate staring
- Suggestive jokes or comments
- Using sexual nicknames
- Displaying or distributing sexually explicit pictures or gifts
- Persistent unwanted sexual advances or invitations to go on dates
- Pressure to have sex
- Intrusive questions about a person’s private life or their body
- Sexual gestures or indecent exposure
- Following someone around
- Indecent physical contact
- Indecent, harassing or sexually explicit emails, phone calls, text messages or online communications
- Threats to share intimate images or video footage without consent
- Actual or attempted rape or sexual assault.
Sexual assault covers a wide range of unwanted sexual behaviours. It is a type of sexual violence that involves forced, unwanted sex or sexual acts. The perpetrator uses physical force, intimidation, or coercion. Sexual assault is not defined by where the offence happened or by the relationship between the parties involved.
Sexual assault can negatively affect someone’s wellbeing and in many cases leads to long-term adverse psychological, physical, sexual and health outcomes.
What happens if you are sexually harassed at work?
There are federal, state and territory laws in Australia to protect people from sexual harassment at work.
The law requires employers to put in place policies, training and procedures to respond to sexual harassment in the workplace. However, just because these policies are in place does not mean that all employees feel comfortable or confident to put their hand up and say a line has been crossed.
It is important to understand your options if you have suffered sexual harassment.
Here are the steps you can take to address sexual harassment in the workplace:
- Firstly, if you feel comfortable to do so, immediately tell the perpetrator that their behaviour is humiliating, offending or intimidating you and you want them to stop. This might result in the behaviour stopping because sometimes people lack basic awareness about their behaviour and the impact this can have on others.
- If approaching the behaviour with the perpetrator is not an option or is unsuccessful in stopping the behaviour, check your workplace policies and see if there are specific steps set out that can provide you with instructions on who to direct your complaint to.
- The next step is to seek assistance from your manager or a human resource office in your workplace. You will need to make a formal complaint to your workplace. Make sure you do so in writing. Include as much detail as possible relating to the harassment, who was involved, and when it occurred. If you have any documents or copies of communication such as emails or text messages which contains material to support your complaint, make sure you include these.
- From this point, your employer should complete an internal investigation and will be required to make a decision on what to do next to ensure the behaviour is addressed and your safety and security is prioritised.
If you are not happy with the action, or inaction, taken by your workplace, you can then lodge a complaint to the Australian Human Rights Commission.
Once a complaint has been lodged, a confidential conciliation process will follow to try to resolve the matter. At this stage, it is common for both parties to want to settle the matter and achieve a swift resolution, whilst also maintaining confidentiality.
In rare cases, if the conciliation process fails, a court case may follow.
Workers’ compensation for your pain and suffering
It is important to understand your rights. If you do not feel you can approach your employer to discuss behaviour in the workplace that has hurt you, there is help you can seek.
If you have suffered physically or psychologically as a result of workplace sexual harassment or assault, you may be able to make a workers’ compensation claim.
To make a claim for compensation, you will need your GP to complete a WorkCover Medical Certificate that details your physical and/or psychological injuries, whether you are unfit for work at present, and your treatment recommendations (e.g. referral to a counsellor or psychiatrist, etc.). You can fill out an online claim form on the WorkCover Queensland website and upload the medical certificate to commence your claim.
In the “statutory benefits” phase of your workers’ compensation claim, you would be entitled to claim weekly payments (i.e. income supplements/payments) and medical treatment costs (e.g. GP/medication/travel/counselling/etc.). If you suffer any permanent impairment from the injury, WorkCover would be required to pay you a lump sum of compensation (upon finalization of your claim) that is commensurate with your level of impairment, as assessed by a WorkCover nominated doctor.
If you suffered the injuries through an unsafe system of work, or employer negligence, you may be able to make a common law negligence claim against your employer for failing to reasonably ensure your workplace was free from the risk of injury through sexual harassment or assault. A common law claim is for your past and future losses (i.e. pain and suffering, past and future income loss, past and future treatment costs etc.) to be paid to you as a once-off lump sum of compensation.
We are here to help
Sexual harassment in the workplace is never okay. It is your human right to live and work free from violence and harassment. Attwood Marshall Lawyers are dedicated to helping victims of harassment or assault. We are trained to listen and connect with our clients and will support you through the complaints process.
We will ensure that we fully understand your story and what you have gone through so that we can help you achieve whatever outcome you seek – whether it is acknowledgement, an apology, compensation, or another outcome.
If you want to speak with an experienced and compassionate compensation lawyer, contact our team for a free, confidential appointment (including by telephone). Call our Compensation Law Department on 1800 621 071.
Free and confidential support services are available.