Origins of Sexual Harassment as Unlawful Conduct
The term “sexual harassment” became a phrase in widespread use around the mid-1970s. It was acknowledged as a distinct social and legal issue largely due to growing awareness and activism. Several key circumstances led to this development:
• Women’s Rights Movements: The feminist movements, especially from the 1960s and 1970s, brought attention to systemic gender inequalities,
• Workforce Changes: As more women entered paid employment in diverse sectors, experiences of sexual misconduct at work were exposed.
• Litigation: Early court cases began recognising sexual harassment as a form of sex discrimination.
• Public Discourse and Media discussion: Increased media coverage and survivor testimonies brought sexual harassment into public consciousness.
Together, these factors created a climate where sexual harassment was no longer dismissed or viewed as an insignificant distraction but recognised as a serious violation of individual rights and workplace standards.
Legislation and its Failures
Legislation followed in some Australian states in the 1970s[1] and later the Federal Sex Discrimination Act making sexual harassment a stand-alone actionable wrong was passed in 1984.[2]
However, the legal mechanisms adopted in Australia and elsewhere to deal with sexual harassment in the workplace (and in other areas) were poorly conceived and turned out not fit for purpose.
The legislation and the concomitant workplace grievance procedures were squarely based on a complaints-initiated system and envisaged adversarial resolution. The burden of responding to sexual harassment in the workplace rested predominantly on the victims. Employees were expected to report incidents, gather evidence, and navigate often hostile or indifferent organisational structures to seek redress. Where litigation was undertaken the complainant bore the same sort of onus as a plaintiff in civil litigation. This is still the position under the Sex Discrimination Act and State legislation in Australia.
While it is true that Australian anti-discrimination and sexual harassment legislation creates a form of statutory vicarious liability for employers, such liability only becomes activated when the victim has initiated legal suit. An employer sued under these provisions is put on its defence to show that it had taken all reasonable steps to prevent the occurrence of the sexual harassment.
Because of the unsuitability of sexual harassment laws and the ineffectiveness of workplace ant-harassment education, the level of workplace incidents has remained stubbornly high.[3]
A new Paradigm for Addressing Workplace Harassment
Recently, there has been a growing recognition of the systemic nature of harassment, the power imbalances inherent in workplaces, and the importance of proactive organisational responsibility to create safe environments.
Many expert commentators have concluded that sexual harassment is not about sexual desire but rather an expression of radically unequal power distribution in workplaces.[4]
Research has shown which types of organisational structures facilitate sexual harassment. Typically, these are organisations which exhibit: hierarchical power structure; male-dominated cultures; lack of diversity and inclusion; inadequate policies and processes; absence of suitable reporting mechanisms. retaliatory or victimising culture; high-pressure work environments; lack of structure; informal or after-hours work settings.[5]
Since structures and culture predispose towards the occurrence of sexual harassment this is the area where preventative measures should be taken.
Accordingly, the inevitable conclusion has been reached by a host of researchers and experts at the coalface of sexual harassment interventions that the primary responsibility should lie with the employer and the strategy should be proactive rather than reactive.
Australia has been at the forefront of pinpointing the deficiencies in the complaints-based system and formulating a comprehensive set of legislative measures to shift to the employer proactive obligations to reduce sexual harassment .
The Respect@Work Commission
The Australian Human Rights Commission’s Respect@Work report (2020)[6] found that sexual harassment is occurring in every industry, every location and at every level of Australian workplaces. It Identified gender inequality as a key driver of sexual harassment and further that social norms which permit violence against women also enable sexual harassment. It emphasised that employers must actively create respectful workplaces, undertake risk assessments, and implement training and complaint mechanisms.
Addressing the legal framework, the Commission noted that there are three key areas of legislation relating to sexual harassment in the workplace: Anti-discrimination laws, the Fair Work Act and State WHS legislation. The Commission indicated that the three legislative systems were inconsistent, and victims were confused in trying to navigate them.[7]
The Commission recommended that the three systems be harmonised. That recommendation has essentially been accepted and put into effect. The nomenclature used and definitions have been made uniform across all three areas encompassing Acts, Regulations and Codes of Conduct
The New Positive Duty
The core foundational piece of the new dispensation has been the introduction of a positive duty in the Sex Discrimination Act on employers and PCBUs (persons conducting business undertakings) to take reasonable and proportionate measures, as far as possible, to eliminate a range of unlawful behaviours including sexual harassment, harassment based on sex discrimination on the ground of sex and victimisation. Those entitled to protection include employees, workers and commission agents.[8]
Enforcing compliance with the new positive duty is vested in the AHRC. The AHRC has published extensive guidelines to assist employers in understanding their obligations and evolving a strategy to meet them. The guidelines enumerate seven standards which should be used in any appraisal: leadership; culture; knowledge; risk management; support; reporting and response; mentoring, evaluation and transparency Individual victims, however, have not acquired an additional legal right upon which to launch an action for breach of this duty.
The Fair Work Act has been amended by the addition of a new Part 3.5A which introduces a prohibition against sexual harassment. Under the new provisions, the Fair Work Commission can hear complaints and make orders to stop sexual harassment.[9]
Finally, there is now explicit recognition in WHS legislation that sexual harassment is a significant cause of harm to employees and others engaged in the workplace. While the Work Health and Safety Act, 2011(Cth) does not specifically mention sexual harassment, it imposes a general duty on employers to ensure workplace health and safety and to avoid causing psychological harm arising from sexual harassment.
In December 2023, WorkSafe Australia issued a comprehensive code of practice for dealing with workplace sexual harassment which mandates the implementation of proactive preventative programs in workplaces. And in March 2025, the Australian Government approved the new Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice implementing recommendation 35 of the Respect@Work Report.
The Work Safe Code sets out the overriding principles for reducing the risks of sexual harassment as follows:
Leadership and culture
Leaders have an important role in creating safe and respectful workplaces that are proactive in managing the risks of sexual and gender-based harassment. Leadership in health and safety is more than talking about it or making statements of your commitment. To manage WHS risks from sexual and gender-based harassment leaders should ensure they understand:
• the prevalence, nature, and drivers of sexual and gender-based harassment
• where there are risks of sexual and gender-based harassment in their workplace, and
• how the risks are being controlled or if they are not, what controls need to be implemented.
Employer’s Responsibility in Other Jurisdictions
Other countries, such as Belgium, France, Sweden, Japan, South Korea and the UK have passed legislation imposing duties on employers to take preventative action against workplace harassment, None, however, appear to have approached the issue as comprehensively as Australia.
Conclusion
The law now recognises that Workplace sexual harassment is no longer simply wrongful conduct to be resolved between perpetrator and victim, where the employer is sometimes sued on the basis of vicarious liability. The legal burden now sits squarely on the shoulders of employers and those controlling the organisation. There is no guarantee, however, that the new legislative regime will bring down the unacceptable rates of sexual harassment in Australian workplaces. It requires in the first place a commitment by employers to instil a culture of zero tolerance for sexual harassment and communicating that its elimination should be a shared goal for all and in the second place that statutory bodies vested with powers to oversee the legislation do so forcefully and consistently.
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1 South Australia passed the first Sex Discrimination law in 1975 followed by NSW and Victoria in 1977. Although these statutes did not mention sexual harassment as a separate ground of complaint it was regarded by the administering bodies as encompassed under the rubric of Sex Discrimination
See in this regard: O’Callaghan v Loder [1984] EOC 92
2 Act of 1984. The Federal Sex Discrimination Act for the first time recognised sexual harassment as an independent self-standind cause of action.
3 Australian Human Rights Commission, Fifth National Survey on Sexual Harassment—November, 2022
4 [Sexual harassment as an Exercise of Power: Wilson, Thompson—Wiley online December, 2002; Sexual harassment as a gendered expression of Power: Uggen, Blackstone—American Sociological Review, Dec. 2002]
5 [A Meta- analysis of the antecedents and consequences of workplace sexual harassment: Willness, Steel, Lee: Personnel Psychology---Wiley Online, 2007]
6 The Respct@Work Commission conducted research and surveys and heard expert evidence over a two-year period. It received 460 submissions from government agencies,business groups, community bodies and victims. It delivered its report to the Government in March, 2020 making 55 recommendations for the combatting of sexual harassment.
7 Respect@Work Report-Introduction Sect iv—The Legal and Regulatory Framework
8 Sex Discrimination Act, Sect 47B and 47C
9 Part3.5_A of the Fair Work Act came into effect on 6 March, 2023. It prohibits sexual harassment in connection with work.
