Stamp out sexual harassment
Sonya Black, LLB (Hons), B.Com, Legal Team Manager – Workplace Law Team, Avant Law, QLD
Sunday, 18 August 2024
From staring or leering to unnecessary familiarity, to brushing up against a team member in a confined space, unwelcome sexual conduct can make work an incredibly uncomfortable place for the person in their gaze.
Yet, those on the receiving end sometimes feel powerless to do anything about it, especially when the behaviours are subtle, and even more so when the offender is their boss. That’s why it’s so important to note that workplaces have a positive duty to actively prevent sexual harassment in connection with work.
What constitutes workplace sexual harassment?
Workplace sexual harassment is unwelcome conduct of a sexual nature that makes a person feel offended, humiliated, or intimidated where that reaction is reasonable in the circumstances. It may include:
- inappropriate jokes
- staring or leering
- unwanted touching
- unwanted comments
- unnecessary familiarity
- unwanted invitations
Sexual harassment is not sexual interaction, flirtation, attraction or friendship which is invited, mutual, consensual or reciprocated.
The legal test for sexual harassment in the federal Sex Discrimination Act has three essential elements:
- the behaviour must be unwelcome;
- it must be of a sexual nature;
- and it must be such that a reasonable person would anticipate in the circumstances that the person who was harassed would be offended, humiliated and/or intimidated.
Whether the behaviour was unwelcome is a subjective question and will depend on the response of the particular person alleging sexual harassment. It is irrelevant that the behaviour may not offend others or has been an accepted feature of the work environment in the past. The intention of the alleged harasser also doesn't matter.
An objective test (i.e. a reasonable person test) is then applied to determine whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated by the behaviour.
Case law
A recent decision which considers each of these elements in detail is Taylor v August and Pemberton Pty Ltd [2023] FCA 1313 (31 October 2023). In that case, the alleged sexual harassment consisted of a male manager giving a female employee numerous gifts, slapping her on the buttock, making various comments to her about her appearance verbally and in text messages, declaring his affection for her and raising the matter again after she had told him she was not interested. After considering the evidence and applying the relevant test, the Federal Court was satisfied that some of the conduct amounted to sexual harassment and awarded $140,000 in respect of the sexual harassment. This compensation award reflects the increasing compensation being awarded in sexual harassment cases.
Legal obligations for doctors and medical practices
All doctors are expected to demonstrate respect for colleagues and patients in the workplace under the Medical Board of Australia’s Good Medical Practice Guidelines.
Workplace sexual harassment and creating an unsafe workplace for colleagues is unacceptable under multiple federal and state laws about sexual harassment in employment. There are substantial fines for breaching these laws. It may also result in dismissal and/or criminal charges as well as having professional consequences on a doctor’s registration.
Doctors should also be aware that they have an obligation under the Health Practitioner Regulation National Law to report “relevant events” to the National Board. “Relevant events” for the purpose of the Act include having been charged with an offence which is punishable by imprisonment of 12 months or more.
In addition, all Australian organisations and businesses have a positive duty under the Sex Discrimination Act to actively prevent sexual harassment in the workplace or in connection with work, rather than responding only after it occurs. This includes doctors who are sole traders or self-employed, as well as those who own and operate medical practices.
Get started
Medical practices must empower their teams to create safe workplaces that are effective at preventing and responding to sexual harassment. The best place to start is involving everyone in undertaking a comprehensive risk management process at the practice. To get started, see guidance under Safe Work Australia’s Model Code of Practice: Sexual and Gender-based Harassment.
Useful resources
Avant eLearning course: Sexual boundaries
A version of this article was originally published in Canberra Doctor Issue 3 June/July 2024. Canberra Doctor Issue 3 2024 by AMA (ACT) - Issuu
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Disclaimers
IMPORTANT: This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.