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Sexual harassment and employer’s strict liability

Sexual harassment and employer’s strict liability

By Elly McQuinn

A recent ABC News Report discusses the commonplace of sexual harassment experienced in the workplace within society. The Report states this is prevalent in the legal profession with one in four females in the profession experiencing sexual harassment at some point. [1]

Such harassment in the workplace, whilst being both shocking and intolerable, also holds strong consequences for employers. The Equal Opportunity Act 1995 (Vic) expressly prohibits sexual harassment occurring in the workplace. Part 5 of the Act deals with any such harassment.


What constitutes ‘sexual harassment’?

S 85 of the Act considers sexual harassment to include:

  • making unwelcoming advances and/or requests for sexual favours
  • engaging in any other unwelcome conduct of sexual nature, such as physical intimacy, and remarks or gestures/action with sexual connotations

In circumstances whereby a reasonable person would have recognised that another person being recipient to such conduct or behaviour would be offended, humiliated or intimidated.


Employers and sexual assault:

Both employers and employees must not sexually assault their co-workers, or people seeking employment within the workplace.

For example, it would be contravening the act to tell a person being interviewed that, if they performed acts of a sexual nature with the interviewer, they would receive or be likely to receive employment.

This category also includes a person that may not be a direct co-worker, but shares a common workplace. An example of this would be the same floor in a building, or a shared office space working for different companies.

Most importantly here for employers is the fact that they are, pursuant to s 102 of the Act, vicariously liable where their employee sexually assaults another person in their workplace unless the said employer can prove they took reasonable steps to prevent the employee or agent from contravening the Act. [2]

The take home message here to all employers is to carefully monitor your employees, have precautionary measures in place such as:

  • A system of anonymous complaints;
  • An external human resources manager to review and monitor employees experiences in the workplace;
  • Regular review with your employees as to their wellbeing, rights and views on what measures should be implemented.

Read the original story here and share your thoughts with us!

[1] Whyte and McGregor 2016 ‘I had this hand go up my skirt’: Female lawyers speak out about sexual harassment in law firms’ ABC News, 27 October, 2016.

[2] Equal Opportunity Act 1995 (Vic) ss 101, 103.

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