The legal definition of sexual harassment

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The legal definition of sexual harassment appears in two Acts - the Commonwealth Sex Discrimination Act (1985) and the Victorian Equal Opportunity Act (1984). The Commonwealth Act is based on the International Convention on the Elimination of All Forms of Discrimination Against Women [Graycar & Morris, p.367]

Commonwealth Sex Discrimination Act (1984)

This act was designed to deter discrimination on the grounds of sex from affecting the chance of women and students being able to participate equally in the workforce and in schools.

Under Section 28 (3), sexual harassment occurs

'if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours . . .. or engages in other unwelcome conduct of a sexual nature in relation to the other person, and -

the other person has reasonable ground for believing that a rejection . . . would disadvantage the other person in any way in connection with the other person's employment or work or possible employment or possible work, or

as a result of ... rejection ... or objection to the conduct ... is disadvantages in any way in connection with ... employment or work ...'

Under Section 29 (3)

(a) Sexual harassment occurs if an unwelcome sexual advance interferes '... in any way in connection with the other person's studies or . . application for admission to an educational institution as a student.'

Victorian Equal Opportunity Act (1984)

Section 20 - Unlawful Sexual Harassment:

20(l) '... It is unlawful for an employer or supervisor of another person -

(a) to make it appear to that person -

(i) that the other person will be disadvantaged in or in relation to any educational activities . . . if that person does not accept the sexual advances of, or tolerate persistent sexual suggestions or innuendo from. the employer or supervisor, or

(ii) that the career prospects or working conditions of that other person are contingent upon....... acceptance of sexual advances or toleration of persistent sexual suggestions or innuendo from the employer or supervisor.

(b) knowingly to permit that employee

(i) to be harassed with sexual advances: or

(ii) to be importuned or harassed with persistent sexual suggestions or innuendo - by a fellow worker, whilst acting in the course of their employment.'

[The Act also extends these provisions to prospective employers and those who provide goods and services to others.]

There can be two kinds of sexual harassment. `Quid pro quo' harassment occurs when employees or students fear they will be disadvantaged if they refuse the harassment, and more generalised harassment occurs through having to work within a 'hostile work environment' - for example, a room in which pictures of naked women are displayed.

Under these laws, sexual harassment is called sexual discrimination. It is against the law because it affects the way in which the person being harassed can undertake her/his job or education, and has a negative effect on her/his career opportunities. Sexual harassment is also against the law in the areas of the provision of accommodation, and goods and services.

Because these laws focus on an attempt to ensure that all people are treated equally in the workplace and places of study, the law is relatively limited, but it is a good beginning. It is an attempt to ensure that the people who have most power in the workplace and places of education do not abuse that power by sexually harassing their employees.

In 1993 the Act was extended so that complaints can be taken up against children aged over 16.

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Disclaimer Copyright Updated: 12 Aug 2009