What is sexual harassment?
Sexual harassment is unwelcome conduct of a sexual nature towards another person which could reasonably be expected to make that other person feel offended, humiliated or intimidated.
A single incident is enough to be considered sexual harassment — it does not have to be repeated behaviour.
The person engaging in unwelcome behaviour does not have to intend to be sexually harassing the other person for the behaviour to be considered sexual harassment. Regardless of what was intended, sexual harassment is defined by the nature and the impact of the behaviour, not the intention behind it.
A key element of sexual harassment is that it is unwelcome.
It is important to note that if a person does not object to inappropriate behaviour at the time; it should not be assumed that they are giving their consent. Consent exists where clear and unambiguous consent has been freely given and continues to be given.
Sexual harassment may include:
- comments about a person’s sex life or physical appearance
- comments of a sexual nature
- leering and staring
- unwanted touching such as brushing up against a person, fondling or hugging
- ‘flashing’
- sexual gestures or imitating a sexual act
- sexual propositions or repeated unwanted requests for dates
- making promises or threats in return for sexual favours
- sexual jokes
- offensive telephone calls, text messages or communications on social media platforms
- displays of offensive photographs, reading matter or objects
- sending jokes or graphics of a sexual nature by email, internet, fax or mobile phone
- unwelcome questioning about a person’s private life
- offensive screen savers
- unwanted requests for sex
- stalking, sexual assault, indecent assault or rape (which are also criminal offences)
Sexual harassment can occur in all aspects of employment, such as recruitment, selection, training and promotion processes and discussions around employment conditions and benefits.
Sexual harassment can also occur through electronic means (such as emails or text messages or by viewing pornographic websites) and through social media, regardless of whether the post was made during work hours or not. Where there is a link to employment, employees are subject to the same rules about sexual harassment in the virtual world as they are in the real world.
As such, employees are required to use technology and social media responsibly in the workplace and in relation to anything or anyone associated with the workplace. This extends to the use of technology and social media outside the workplace where there is a strong connection to the employment relationship (for example, between colleagues where the foundation of the relationship is a common workplace). Further information regarding the use of technology is available in the Department’s Acceptable Use Policy for ICT Resources.
The Equal Opportunity Act 2010 (Vic) addresses sexual harassment in Part 6. Section 92(1) provides 'a person sexually harasses another person if he or she':
- makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
- engages in any other unwelcome conduct of a sexual nature in relation to the other person,
- in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated'
Section 92(2) provides 'conduct of a sexual nature' includes:
- 'subjecting a person to any act of physical intimacy,
- making, orally or in writing, any remark or statement with sexual connotations to a person or about a person in his or her presence,
- making any gesture, action or comment of a sexual nature in a person’s presence'
Similar provisions apply under the Sex Discrimination Act 1984 (Cth). Sexual harassment can also amount to discrimination on the grounds of gender under both the Commonwealth and State legislation. Further information regarding discrimination is available in the Department’s Equal Opportunity — Employees Policy.
Reviewed 27 March 2020
