The Human Rights Commission estimates that sexual harassment and assault at work happens to one in three Australian women. Whilst both sexual harassment and discrimination at work are unlawful in Australia, legal action can be time consuming, expensive and stressful. As such, internal solutions are often the most effective course of action. In order to protect yourself, it is crucial that you know your legal rights in the workplace, and what action you can take to enforce them.
I was up for a promotion, which my boss had told me I’d be perfect for. Then I told my boss I was pregnant. Suddenly the promotion disappeared. He said it wouldn’t be healthy for the baby to have that amount of stress in my life.
I worked as an usher. All the ushers had shared stories about one particular backstage manager and how he could get a bit grabby.
If these sound like common experiences, it’s because they are.
Are you being discriminated against?
Both state and federal laws across Australia prohibit discriminatory treatment in the workplace on certain protected grounds. These grounds vary between different states and territories, but include race, gender, sexual orientation, marital status, pregnancy, breastfeeding and family responsibilities.
Discrimination can be direct, for example, where you are denied a promotion because you are pregnant or are selected for redundancy due to your gender. However, discrimination may also occur indirectly, including where requirements are put in place by an employer which prejudice certain people, for example, a dress code that prohibits the wearing of hats or head coverings in the workplace may discriminate against employees who wear head coverings for religious reasons.
What if you’re being sexually harassed?
Sexual harassment is unwelcome sexual behaviour, and can be verbal, written or physical. It is against the law if it would make a reasonable person feel offended, humiliated or intimidated. Sexual harassment includes unwanted touching, lewd or suggestive comments or jokes and repeated, unwanted requests to go on a date.
Sexual harassment also includes criminal conduct, such as sexual assault or stalking. Potentially criminal conduct should be immediately reported to the police.
What you can do if you experience discrimination or sexual harassment?
1. Gather information – Write it down
You should keep a comprehensive record containing details of any incidents of harassment or discrimination that have occurred. It should include the date, time, location, people involved, what occurred and any witnesses. Try to write it down as soon as it occurs and consider saving it to a computer or sending it in an email to yourself so that the note is given a time and date. This may be useful in any investigation or legal action.
2. Raise the issue with the perpetrator
If you feel safe and comfortable doing so, raise your concern with the person who has discriminated or harassed you. Your employer should have policies in place on discrimination and sexual harassment, providing guidance on what to do if you experience these issues in the workplace. These policies may direct you to raise the issue with the perpetrator first, or make a report to a complaints officer. If at any point you feel that your physical or mental health or safety is threatened, you should see a doctor, or, in serious cases, report the matter to the police.
3. Raise the issue with your employer
Again, refer to any workplace policy. If your employer does not have policies in place, you can report the matter to human resources or a senior manager, again, only if you are comfortable.
4. Take legal action by making a complaint
If you don’t feel comfortable raising the issue with the perpetrator or your employer, or if you take these steps and it is not addressed or resolved, you can make a legal complaint, under either federal or state law depending on the nature of your complaint.
The Australian Human Rights Commission (AHRC) website provides a helpful summary of the different federal and state equal opportunity laws under which you can make your complaint.
Alternatively, you can make a general protections claim to the Fair Work Commission (FWC), on the basis that you have been subject to adverse treatment in your employment (for example, dismissal or demotion) for a discriminatory reason. Information on general protections claims can be found on their website.
Complaints to the AHRC, FWC and state and territory commissions are initially dealt with through conciliation, where you, your employer and/or any specific perpetrator(s) discuss the issue, either in person or via teleconference, and attempt to resolve it by agreement with the assistance of a commission representative. None of the AHRC, FWC or state and territory commissions have the power to make orders or award compensation, and attendance at the conciliation may not be compulsory for your employer and/or the perpetrator.
If your complaint doesn’t resolve at conciliation, then you can escalate the matter to the relevant court or state or territory tribunal, which has the power to make orders and award you compensation (however, in certain states or territories you can proceed directly to the tribunal).
Whilst you can represent yourself before a court or tribunal, the legal issues are often complex, and it can be difficult to do so effectively without legal advice. Legal action can also drag on for months, even years, and cause undue stress. Given this, the best outcome is often to resolve the issue by agreement with your employer.
Whatever course of action you choose, no person should have to put up with discrimination or harassment in the workplace, and you should consider seeking legal advice if your rights are being infringed.
Written by Hannah Dunai and Hannah Pelka-Caven, Lawyers, Holding Redlich
Although precautions have been taken to ensure the information is accurate, this article is no substitute for independent legal advice, and the information is considered correct as of the date of publication.