Harassment
Harassment is a form of discrimination which is unlawful under various state and territory anti-discrimination laws. Harassment is the mistreatment of an individual on the basis of particular attributes of the individual that are protected by anti-discrimination legislation. These attributes include, race, religion, sex, political affiliation and disability. A full list of protected attributes can be found in What is Workplace Discrimination?

Examples of harassment include but are not limited to;

• Making jokes about an individual based on their protected attributes.
• Verbal or online abuse directed to an individual about their protected attributes.
• Inciting hate or violence towards an individual on the basis of their protected attributes.

Sexual Harassment
The most common form of harassment in the workplace is sexual harassment. Sexual harassment is considered to be an unlawful form of discrimination whereby an individual’s actions of a sexual nature are unwelcome and inappropriate towards another person or persons. The behaviour, taking into account the circumstances, would be viewed as being unwelcome and inappropriate by a reasonable third person. Sexual harassment is defined by the Human Rights Commission as; “Any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated.”

This form of harassment is unlawful in that it is prohibited under various state and territory legislations. All state based anti-discrimination acts and the Commonwealth Sex Discrimination Act 1984 prohibit sexual harassment.  Regardless of whether the harassment occurs in the workplace or anywhere else, it is unlawful. 

Examples of Sexual Harassment
Examples of sexual harassment in the workplace include but are not limited to;

• Staring or leering
• Unwanted touching, such as brushing against a person or inappropriate and unnecessary touching
• Suggestive comments or jokes
• Insults or taunts of a sexual nature
• Intrusive questions or statements about a person’s private life
• Displaying posters, magazines or screen savers of a sexual nature
• Sending sexually explicit emails or text messages both during work hours and outside of work hours to another employee(s).
• Accessing sexually explicit internet sites during while at work or when using electronic devices that are the property of the employer.
• Requests for sex or repeated unwanted requests to go out on dates.
• Behaviour that may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.

A court would view the intent of the behaviour (e.g. to cause offence or harm) as being irrelevant in determining if an individual has engaged in sexual harassment. Rather a court would examine whether the behaviour caused the individual harm or offence under the circumstances.

Vicarious Liability
Vicarious Liability is defined as the legal responsibility an employer may have for conduct of its employees by virtue of their legal relationship with its employees, despite that the employer did not directly engage in the conduct. Under Federal anti-discrimination law an employer may be held liable for any instance of harassment that occurs in their workplace, regardless of the size of the employer and nature of their business. If it is demonstrated the employer was aware of the harassment occurring and did not take reasonable measures to prevent the harassment occurring, the employer will be deemed to be complicit in the harassment occurring and therefore liable. For example, in 1998, Mitsubishi Motor Manufact­uring was ordered to settle a suit by paying $34 million to 360 women who had been harassed in their plant.

Employer Obligations
An employer has numerous obligations by law to both prevent harassment from occurring and intervene to prevent it from continuing if it is found to have occurred. The obligation to prevent harassment from occurring is covered by Work Health and Safety (WHS) legislation (Occupational Safety and Health legislation in WA).

Preventing Harassment from Occurring
An employer is required by law to ensure the safety of all persons in their workplace by providing a safe work environment, which is free from harassment.  Thus it is the obligation of the employer to ensure harassment does not occur in the workplace. The first step in preventing harassment from occurring is to implement a policy which prohibits harassment. The policy should define harassment, provide clear examples of harassment, and explain the organisational procedure for reporting and dealing with complaints. Once the policy has been drafted, all employees should be provided training to ensure they are familiar with the policy and what is expected of them in terms of their obligations under the policy. Breaches of the policy should be dealt with as soon as possible according to the procedures in the next section.

Managing Allegations of Harassment in the Workplace
All forms of harassment described above (and others) should be addressed immediately and treated as serious misconduct and thus not tolerated by the employer. Any incidents of misconduct should be dealt with by first investigating the allegations of misconduct by interviewing all parties related to the allegations. If the allegations are established the employer will have to consider what action to take to appropriately address the misconduct, which may include termination of the employee’s employment. Seek legal advice if serious disciplinary action such as termination is warranted or if an employee threatens legal action. Regardless of if the incident of harassment is reported by the victim or witnesses to the incident, it none the less needs to be treated as serious and addressed by the employer.

Investigative Procedures
Knowing how to conduct a fair investigation can ensure you take action appropriate to the offence. Consider these guidelines:

• Interview the complainant. Determine what happened, when, who else might be aware of the incident, the background, and attitudes towards the accused.
• Interview the accused. Have a third person present and allow the accused to choose that person. Tell the accused what the accusation has been and make sure the nature of the claim is understood. Again, identify the facts of the incident.
• Interview all key witnesses. Discretion is insufficient reason not to interview someone. Be aware that third parties often tend to take sides, so isolate and document facts rather than opinions.
• Mediate a meeting between the complainant and the accused. If such a meeting would not be too traumatic or sensitive, it can clarify percept­ions, reveal management's concern, and often resolve the incident.
• Make an objective decision. The final decision must be based on facts, not personal attitudes or relationships. Weigh up the evidence. Objectivity is essential.

Employee Obligations
Familiarise yourself with your organisations policy on harassment, if your workplace doesn’t have a policy then it is important to campaign for one to be implemented.

If an employee believes they have been or are being harassed, they should report their allegations to the relevant supervisor/manager in their workplace as soon as possible. If the allegations relate to the supervisor/manager they directly report to, then they could refer the allegations to an alternative supervisor/manager of their workplace. All other employees of the workplace who believe they have witnessed incidents of harassment should also report the incidents to their supervisor/manager. If the allegations relate to their supervisor/manager if they could report the allegations to an alternative supervisor/manager.

All allegations of harassment reported by any employee should be in writing and provide detailed information of the incident(s) such as time, dates, who was involved, where the incident occurred, what events took place that constituted harassment and names of other persons who witnessed the incident.

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