Sex-Based & Sexual Harassment → SDA Part II Div 3
A. Definitions of HarassmentSexual Harassment
• Sexual Harassment defined in s28A
o s28A(1): a person sexually harasses another person if:
− (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours TO the person harassed, OR
− (b) engages in otherwise unwelcome conduct of a sexual nature IN RELATION TO the person harassed
− in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated
• Three Elements
o 1. Conduct of a Sexual Nature
− Objective, question of fact for court to determine → depends upon nature & quality of the act
→ No requirement that perpetrator knew/intended conduct was sexual in nature (Johansen v Blackledge, Cook v Plauen)
− Has been interpreted WIDELY/broadly (see Poniatowska, Stanley v Service to Youth)
→ See s28A(2): conduct of a sexual nature INCLUDES making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing
→ AHRC Resource for employers
Sexual comments (including questions about sexual life, propositions, comments about a persons body); intrusive invitations to go out socially or requests for sex
➢ e.g. Font v Paspaley Pearls: inappropriate questions & comments, request to model bikini
cf Cooke v Plauen Holdings: sitting close to applicant while supervising part of
‘unfortunate supervision style’
Exposure to sexually explicit material such as magazines, posters, emails; sexually suggestive jokes or obscene language (see Vitality Works: jokes & innuendo)
Sexual touching, hugging, kissing, massaging
➢ e.g. Elliot v Nanda: fondling breasts, touching bottom, trying to kiss, massaging her shoulders, brushing against breasts
➢ Conduct may amount to assault or criminal offence → see Vegara v Ewin: indecent exposure, stalking
− Does NOT include sex-based conduct → NOW covered under s28AA
→ e.g. ‘gender-based allusions’ or ‘potentially sexually charged language’ where ‘not accompanies by sexual connotations as opposed to simple hostility’ (Richardson v Oracle, Buchanan J)
→ See e.g. Dye v Cth: ‘nothing but a stupid blonde with big tits who nobody takes seriously anyway’ &
allegation that only progressed at work because of sexual allure
− Repetition NOT essential and single incident may amount to harassment
→ See Hall v Sheiban: although ordinary meaning of ‘harass’ implies repetition, not contained in s28A &
‘harass’ not used to define (see Wilcox & French JJ)
→ Certain conduct on own may not amount ot conduct of a sexual nature, but may do so when forms broader pattern or sexual conduct
e.g. Sheil v James: flicking of rubber bands part of broader pattern
− Conduct in relation to the person harassed
→ Wider than conduct directed specifically to the complainant (cf under (a) must be TO person)
→ e.g. Vitality Works: display of poster of employee, making sexually suggestive remarks or. Holding up to embarrassment/humiliation may satisfy test of ‘in relation to’
o 2. That is Unwelcome
− Aldridge v Booth: unwelcome = advance, request or conduct was NOT solicited or invited by applicant, &
applicant regarded as undesirable or offensive
→ SUBJECTIVE test to be interpreted in context
Complainant’s bear onus of proving sexual conduct unwelcome (ordinarily discharged by person harassed giving evidence to that effect): Hughes v Hill
➢ Some cases ‘painfully obvious’ e.g. where complainant repeatedly and clearly rejects sexual conduct (see Hughes)
− Depending on circumstances, behaviour of applicant/their response may be relevant in assessing whether conduct unwelcome
→ e.g. Wong v Su: consensual & voluntarily entered relationship, continued for number of years
→ e.g. Daley v Barrington: complainant’s response was ‘friendly’ and included ‘putting arm around’
responded → not sufficient to satisfy unwelcome, even if next element re offence etc. met
→ BUT failure (or delay) of complainant to challenge each incident of unwelcome sexual conduct does NOT necessarily amount to acceptance by complainant of conduct → depends on FACTS
Circumstances or relationship between parties may assist in determining whether complainant needed to verbalise this expressly & directly to perpetrator
➢ e.g. Elliot v Nanda: teenager sexually harassed at work by older doctor (director of centre)
➢ e.g. San v Dirluck: as her manager/superior, would not be easy for her to tell him that she found the remarks unwelcome
➢ e.g. Vitality Works: delay in response caused by embarrassment & recalcitrance to discuss conduct will not negate a finding that conduct unwelcome
e.g. Horman v Distribution Group Ltd: while conduct of applicant resulted in number of claims being unsuccessful, ‘everyone is entitled to draw the line somewhere’ & some of activities complained about ‘crossed that line’
− Does NOT require that perpetrator knew/ought to have known conduct unwelcome o 3. Reasonable Person Would have Anticipated Possibility
− i.e. a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated
→ s28A(1A): the circumstances to be taken into account include but are not limited to:
(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin of the person harassed
(b) the relationship between the person harassed and person who made advance/request or engaged in the conduct
(c) any disability of the person harassed
(d) any other relevant circumstance
− Objective test WITH some ‘subjective’ elements → all circumstances + actual person harassed
→ Do NOT need to prove actually offended, humiliated or intimidated or whether perpetrator did actually anticipate possibility of offence
Anticipated the possibility (LOWER threshold than ‘expect’ or ‘probability’)
→ Consider the effect of the conduct on the ACTUAL person harassed
What a reasonable person would anticipate depends upon all circumstances of the case, but is assumed to have some knowledge of the person harassed (Hughes v Hill, Perram J)
− CIRCUMSTANCES/context relevant
→ e.g. Font v Paspaley Pearls: reference to modelling bikini at a promotional function (not satisfied)
→ e.g. Beamish v Zhang (attempt to touch breast and offering $ for sex): workplace fairly ‘rough and tumble’ where light-hearted sexual banter tolerated BUT Mr Zheng’s conduct went beyond this
− No ‘defence’ of homosexuality → actual actions assessed, not person carrying them out
→ e.g. Font v Paspaley Pearls: contravention cannot be negated by fact that person may not have any sexual designs upon the victim
Sex-Based Harassment / ‘Harassment on the Ground of Sex’ (as of 11 September 2021)
• Sex-based harassment defined in s28AA
o (1) a person harasses another person on the ground of sex if:
− (a) by reason of:
→ (i) the sex of the person harassed
→ (ii) a characteristic that appertains generally to persons of the sex of the person harassed
→ (iii) a characteristic that is generally imputed to persons of the sex of the person harassed
→ the person engages in unwelcome conduct of a seriously demeaning nature in relation to the person harassed, AND
− (b) the person does so in circumstances which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or
intimidated
o (2) the circumstances to be taken into account include, but are not limited to,
− (a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin of the person harassed
− (b) the relationship between the person harassed and person who engaged in the conduct
− (c) any disability of the person harassed