Are Unwelcome Comments Sexual Harassment? What Can I Do? There care two parts to the answer, 1) when does a unwelcome comment become sexual harassment?, then 2) what do i do about it?
Unwelcome Comments
A broad range of conduct can be deemed ‘sexual harassments within the definition of the Sex Discrimination Act 1984 (Cth). Sexual harassments is not limited to a co-worker making a sexual advance towards you or propositioning you for sex.[1] Sexual harassment also includes any unwelcome conduct of a sexual nature which could reasonably make you feel offended, humiliated, or intimidated.[2]
What constitutes prohibited conduct
Despite the lack of a universal definition of sexual harassments, there is general consensus about what constitutes prohibited conduct.
Unwelcome conduct can include inappropriate comments, regardless of whether or not the comments refer to you specifically. To illustrate, inappropriate comments could include:
- Sexually suggestive comments or jokes
- Intrusive questions or remarks about your private life
- Comments on your physical appearance
- Invitations to go on dates
- Requests or pressure for sex
- Inappropriate nicknames, such as “sweetie”, “sweetheart”, “love”, “darling” or “gorgeous”
In 2020, the Australian Human Rights Commission published the Respect@Work: Sexual Harassment National Inquiry Report,[3]
which investigated the prevalence of sexual harassments in Australian workplaces and proposed various reforms. The report includes quotes from submissions and interviewed victims, some of which are stated below to illustrate types of unwelcome conduct that can be considered sexual harassment:
“I was propositioned by a manager I had a lot of respect for, saying he would take me to a hotel…It made me really uncomfortable to be near him after that.”[4]
“Working in a café aged 20, a male colleague in his fifties one day asked if I had my period. I asked why, and he said that my breasts were slightly larger than usual. I mentioned this to the female manager and café owner and she said, ‘He’s just like that. Don’t get so worked up.’”[5]
The comments do not need to be about you for them to be considered sexual harassments. It can still be sexual harassment if someone boasts about their sex life or makes sexual comments to you about other people. For example, in a case heard before the Queensland Human Rights Commission in 2018, a male colleague whispered comments to a female colleague about other female employees, including, “Why does she wear those tight pants, what does she want?” and “I don’t have a problem with women…but they can’t work in the industry because, you know, they have families and they have to give that priority, that’s what they do right?”[6]
Moreover, the comments do not need to be verbally spoken to be considered sexual harassments. Written comments can likewise be sexual harassment,
such as if you received inappropriate text messages, social media comments, or emails. Technology has made it significantly easier for some perpetrators to continue harassing their victims, even out of work hours. Even what may start as a banal, casual conversation can escalate into inappropriate comments making you feel uncomfortable.
Your circumstances in being made to feel offended, humiliated or intimidated can also be taken into account in determining whether the conduct was sexual harassments, including your gender, sexual orientation, gender identity, relationship status, religious belief, or ethnicity.[7]
For example, if a co-worker made a lewd comment about women and you were offended because you are a woman, this can be a factor taken into account in determining whether sexual harassments occurred. Additionally, the relationship between yourself and your harasser could be taken into account.
Severity and Frequency of Sexual Harassment
Whether one or a series of incidents amounts to harassment depends on a balancing of the severity of the incidents and their frequency. The purpose for balancing the severity and frequency of the incident is to ensure that offensive comments are not made in the work environment but also to protect the employer from liability for every objectionable remark.
A single incident may constitute harassment, especially if the incident is prolonged, offensive and very serious in nature. For example, a case in which a supervisor fondled an employee’s breasts would constitute a case of sexual harassments arising from a single incident.
On the other hand, a combination of events with varying amounts of seriousness and frequency may also be harassment. For example, a case in which a manager repeatedly asked a clerk for a date despite consistent refusals, told sexually explicit jokes in front of the clerk, and repeatedly made sexual innuendoes to the clerk to make her blush would also constitute sexual harassments.
In the U.S. if the behavior causes someone to take offense, it will be judged whether or not it is sexual harassments from the perspective of a reasonable woman or in some states, a reasonable person. Under the reasonable woman standard, unless one-time unwelcome behavior is sufficiently severe it must be pervasive or regular to qualify as sexual harassmenst.
The Stop Violence Against Women website (STOPVAW), a project of The Advocates for Human Rights,
In summary, unwelcome comments are certainly sexual harassment.
The comments do not need to be about you specifically, and it does not matter whether they were said to you verbally or in writing. If you are made to feel offended, humiliated or intimidated in the workplace due to a colleague’s inappropriate comments, you have a right to raise a sexual harassment complaint and seek justice. Not sure, if your hesitant, then give us a call, we will be able to draw some clarity to the situation
At A Whole New Approach Pty Ltd, we are not sexual harassment lawyers, or harassment lawyers but experienced workplace advisors and representatives who have been representing and advising on sexual harassment matters since 2004. We respect you. Your welcome to give us a a call, get free confidential advice today 1800 333 666. All Fair work Commission matters, including forced to resign due to sexual harassment, adverse action, unfair dismissal. We work in all states, including Victoria, NSW, QLD, WA, cities including Sydney, Melbourne, Brisbane
[1] Sex Discrimination Act 1984 (Cth) s 28A(1)(a).
[2] Sex Discrimination Act 1984 (Cth) s 28A(1)(b).
[3] Available at <https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020?mc_cid=1065707e3c&mc_eid=%5bUNIQID%5d&_ga=2.209134354.1848091599.1631351958-1634376069.1629177963>.
[4] Australian Human Rights Commission, Respect@Work: Sexual Harassment National Inquiry Report (2020) 124.
[5] Australian Human Rights Commission, Respect@Work: Sexual Harassment National Inquiry Report (2020) 125.
[6] Queensland Human Rights Commission, ‘Ongoing Sexist and Sexual Comments in Workplace Ignored’ (Web Page) <https://www.qhrc.qld.gov.au/resources/case-studies/sexual-harassment-case-studies>.
[7] Sex Discrimination Act 1984 (Cth) s 28A(1A).
