Sexual harassment Part 1: know your rights

Sexual harassment continues to be prevalent in the community, including at work. It can have a significant impact on a person and their mental health. In some cases, the harassment can cause psychological or psychiatric injury.

But what does sexual harassment mean and what can you do about it if you are subjected to sexual harassment, for example, at work?

In Queensland, we have legislation called the Anti-Discrimination Act 1991 (the Act). It includes laws specifically in relation to sexual harassment. Only the Act is considered in this article and not any other laws relating to conduct that falls within the Act’s definition of sexual harassment.

Purpose of the Act

One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from sexual harassment. The Act seeks to achieve that purpose by:

1.    Prohibiting sexual harassment

2.    Allowing you to lodge a complaint under the Act against the person who has sexually harassed you;

3.    Establishing agencies and procedures under the Act to deal with the above complaints.

It is an express provision of the Act that “a person must not sexually harass another person” (s118).

What is sexual harassment?

Sexual harassment (according to section 119 of the Act) happens if a person:

(a) subjects another person to an unsolicited act of physical intimacy; or

(b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or

(c) makes a remark with sexual connotations relating to the other person; or

(d) engages in any other unwelcome conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described in paragraphs (a) , (b) , (c) or (d) does so—

(e) with the intention of offending, humiliating or intimidating the other person; or

(f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

Some of the examples for sexual harassment in the Act are the following, but this is not an exhaustive list and many other examples of behaviour may be considered sexual harassment:

-          physical contact such as patting, pinching or touching in a sexual way

-          unnecessary familiarity such as deliberately brushing against a person

-          sexual propositions

-          unwelcome and uncalled for remarks or insinuations about a person’s sex or private life

-          suggestive comments about a person’s appearance or body

-          offensive telephone calls

-          indecent exposure 

Lodging a complaint

If you are sexually harassed you have the right to lodge a complaint with the Queensland Human Rights Commission on the basis the perpetrator’s conduct contravened the Act. The complaint form is available on the Commission’s website and can be lodged online, via email or by post. There is a defined process for dealing with the complaint under the Act and we will look closer at that complaint handling process in next week’s blog!

Importantly, the complaint must be lodged within 1 year of the offending behaviour to avoid having to show good cause as to why the complaint should be accepted late.

Whether there is good cause in your individual circumstances can be a complex question and you should consider obtaining legal advice regarding your rights, including whether any late complaint may still be viable.