Despite more than 20 years of sexual harassment being unlawful, it is still a persistent problem in Australian workplaces and one which is grossly under-reported. The law is this area should seek both to redress the harm suffered by the victim and to reduce the power imbalance between males and females. The effectiveness of the Sex Discrimination Act 1984 in achieving these objectives was reviewed by a Senate Committee in 2008. One of its recommendations was for positive duties to be imposed on employers to eliminate sexual harassment. This article outlines how this recommendation might be implemented, and taken further, by shifting the onus away from the victim and onto the more powerful players in any sexual harassment scenario – the harasser, the employer and the community in the relevant workplace.
Sexual harassment comprises a range of intimidating behaviours, which range from verbal teasing to conduct that is criminal, for example, sexual assault. Whilst sexual harassment may occur in many social settings (such as on the street or in the home), the focus of this article is employment,1 which is the area in which more than 90 per cent of complaints arise.2 Part II of this article provides statistics and describes the nature of sexual harassment in Australia.
BA LLB (Hons) (Macquarie); LLM (ANU). Although it must be recognised that change in the public sphere cannot be achieved in isolation from addressing inequality in the private sphere – see Beth Gaze, ‘Twenty Years of the Sex Discrimination Act: Assessing its Achievements’ (2005) 30(1) Alternative Law Journal 3, 3. 2 Peter Bailey, The Human Rights Enterprise in Australia and Internationally (2009) 577. 1
190 DEAKIN LAW REVIEW
Sexual harassment is specifically proscribed by the Sex Discrimination Act 1984 (Cth). Two important objects of that Act are to ‘eliminate ......