Is sexual harassment in the workplace unlawful?
Yes — section 28B of the Sex Discrimination Act 1984 (Cth) renders it unlawful to sexually harass employees.
It is also unlawful under sections 59 of the Discrimination Act 1991 (ACT) and 22B of the Anti-Discrimination Act 1977 (NSW).
What risks does it pose to the employer?
An employer will be vicariously liable for one employee’s sexual harassment of another unless it can show that it took all reasonable steps to prevent it from happening in the first place.
The case of Richardson v Oracle Corporation Australia Pty Ltd  FCAFC 82 increased the range of damages in such cases to around $100,000 and above.
What steps should an employer take to prevent sexual harassment from occurring?
Although it would be impossible for an employer to ensure that sexual harassment never happens in its workplace, in Richardson v Oracle Corporation Australia Pty Ltd the court made it clear that for an employer to avoid vicarious liability, at the very least it needs to:
- Have a policy in place that:
- States that sexual harassment is against the law;
- Refers to the federal, state, or territory anti-discrimination laws that apply to the organisation; and
- States that employees could have legal action taken against them for sexual harassment, and that they could also be exposing the company to liability; and
- Provide regular and ongoing sexual harassment training.
Our legal partner BAL Lawyers sells a best-practice Bullying, Harassment & Discrimination policy that complies with the relevant legislation and latest case law relating to sexual harassment. Policies are available here.
Contact us for more information.