Sexual Harassment, is now, more than ever, in the public consciousness and in the minds of human resources managers and workplace investigators.  In the fifteen years that I have conducted workplace investigations in NSW I have never seen so many sexual harassment complaints being investigated.  This is, in large part due to the media attention that the #metoo movement has received internationally but there also seems to be a growing awareness, generally, of what is, and what is not, acceptable in the workplace. 

Although it may seem obvious what sexual harassment is, there is, in fact, a three-part test set down in the Federal Sex Discrimination Act to determine whether conduct can be legally defined as sexual harassment. 

 It is essential for investigators and decision makers to understand this test if they are going to conduct a sexual harassment workplace investigation. 

3 steps to determining if a complaint involves sexual harassment: 

Step 1 – Was the alleged conduct unwelcome? 

Step 2 – Was the conduct of a sexual nature? 

Step 3 – Would a “reasonable person” be offended, humiliated or intimidated by the conduct. 

Step 1 – Was the alleged conduct unwelcome?

Step 1 is normally an easy hurdle to pass over as it is a subjective test.  Normally a workplace investigation of a sexual harassment claim will be initiated by a complaint from the recipient of the alleged conduct (the complainant). If the complainant has made a complaint about the conduct of another worker towards them which could fall into the category of sexual harassment and warrants a workplace investigation, then they will almost certainly have found the conduct unwelcome.  However, sometimes there may be instances in which the complainant did not object to the conduct of the respondent. 

 For example, if the respondent put their arm around the waist of the complainant on numerous occasions but the complainant never objected to this, it does not mean the conduct was unwelcome.  The complainant may have felt extremely uncomfortable about the physical contact but they were unable to object for fear of losing their job or some other adverse consequence.   

The difficulty with the scenario above is that the respondent may believe that the complainant’s failure to object amounts to an implicit acceptance of the behaviour and believe that the two are involved in a mutually flirtatious relationship.  However, as Step 1 is a subjective test, it does not matter what the respondent’s opinion is, as long as the complainant felt the conduct was unwelcome.  

 This example above can be distinguished from a situation in which the two employees are genuinely flirting with each other or in a romantic relationship.    

Step 2 – Was the conduct sexual? 

Determining whether conduct is sexual in nature is ordinarily not a difficult test.  The conduct may be verbal, written, physical or an image.  Depending on the circumstances conduct which, on face value, may not seem to be overtly sexual, such as pushing or shouting, may be considered sexually aggressive behaviour and satisfy the requirements of Step 2. 

Step 3 – Would a “reasonable person” be offended, humiliated or intimidated by the conduct?

Unlike Step 1, this is an objective test.  The workplace investigator, human resources manager or decision maker must consider whether a ‘reasonable person’ would be offended, humiliated or intimidated by the alleged conduct.  There is no definition of who a ‘reasonable person’ is but the relationship between the two employees, how long they had worked together, any power imbalance, the work environment as well as age, race, ethnicity and disability may be taken into consideration when determining if a ‘reasonable person’ would have found the conduct offensive, humiliating or intimidating.