Sex discrimination, sexual harassment, sex-based harassment and hostile work environment on the ground of sex

Understanding sex discrimination, sexual harassment, sex-based harassment and hostile work environment on the ground of sex

Sex discrimination happens when a person is, or a group of people are, treated less favourably than others because of their sex, gender identity, intersex status, sexual orientation, marital or relationship status, family responsibilities, because they are pregnant or might become pregnant, or because they are breastfeeding.

Sexual harassment is unwelcome sexual behaviour which a reasonable person would anticipate would make someone feel offended, humiliated or intimidated.

Sex-based harassment is any unwelcome conduct directed at a person because of their sex that a reasonable person would anticipate would offend, humiliate or intimidate the person to whom it is directed.

What does sex discrimination, sexual harassment, sex-based harassment and a hostile work environment on the ground of sex in the workplace look like?

Sex discrimination

Discrimination can be direct or indirect. 

Some examples of direct sex discrimination include:

• not employing a woman because of a belief that she won’t fit into a ‘traditionally’ male workplace
• paying a woman less than a man for doing the same job.

Indirect sex discrimination can be less obvious. It can happen when organisations put conditions in place that seem to treat everyone equally, but actually disadvantage some people. 

Some examples of indirect sex discrimination include:

• not allowing workers to take short breaks at particular times, which may disadvantage women who are breastfeeding
• offering only married workers in remote locations allowances and leave to visit their families (not those who are single or in de facto relationships).

Sexual harassment and sex-based harassment

These 2 behaviours have subtle differences. Sexual harassment is sexual in nature, while sex-based harassment is harassment on the ground of sex.

Sexual harassment can include behaviour such as:

• staring, leering or unwelcome touching
• sending explicit or sexually suggestive emails or text messages
• displaying pornographic posters or screen savers
• asking intrusive questions about someone’s personal life, including their sex life
• unwanted invitations to go out on dates or requests for sex
• unnecessary familiarity, such as deliberately brushing up against a person. 

Even a one-off incident can be sexual harassment.  

The Australian Human Rights Commission’s fifth national survey on sexual harassment in Australian workplaces found that in the previous 5 years, one in 3 Australians (33%) have been sexually harassed at work. 

Anyone can experience sexual harassment, but women are significantly more likely to experience it than men. Other groups more likely to experience sexual harassment include:

• workers under 30 years of age
• workers who identify as lesbian, gay, bisexual, transgender, intersex, queer or asexual (LGBTIQA+)
• Aboriginal or Torres Strait Islander workers
• workers with disability 
• workers from culturally and linguistically diverse backgrounds 
• migrant workers or workers holding temporary visas
• people in insecure working arrangements (for example, casual, labour hire or part-time work).

Hostile workplace environment on the ground of sex

It is unlawful for a person to subject another person to a workplace environment that is hostile on the ground of sex. See the Australian Human Rights Commission website for more information on what may constitute a workplace environment that is hostile on the ground of sex.

How does it affect people and your organisation? 

Sex discrimination, sex-based discrimination, sexual harassment, and a hostile work environment on the ground of sex can cause physical and psychological harm to the person it is directed at. It can also have broader effects within an organisation. Discrimination and mental health explains more about potential effects of discrimination. 

Legal responsibilities to prevent sex discrimination, sex-based harassment, sexual harassment and a hostile work environment on the ground of sex

Sex discrimination laws make it unlawful to discriminate against a person because of their sex, gender identity, intersex status, sexual orientation, marital or relationship status, family responsibilities, because they are pregnant or might become pregnant or because they are breastfeeding. 

The Sex Discrimination Act 1984 (Cth) prohibits sexual harassment and discrimination in many areas of public life, including in work-related activity. There are also protections against sex discrimination in the Fair Work Act 2009 (Cth), which states that, where an employer’s conduct contravenes a Commonwealth or state anti-discrimination law, employers cannot take adverse action against an worker or prospective worker on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, breastfeeding, gender identity, intersex status, marital status, family or carer responsibilities, pregnancy, religion, political opinion, national extraction, or social origin.

These laws make it unlawful to discriminate against workers: 

• when advertising jobs
• during recruitment and selection processes
• when making decisions about training, transfer and promotion opportunities
• in the terms, conditions and termination of employment. 

The Fair Work Act also prohibits sexual harassment in connection with work. This protection applies to current and prospective workers, as well as people conducting a business or undertaking. A person or company may be liable for sexual harassment committed by an worker or agent in connection with work unless the person or company can prove that they took all reasonable steps to prevent the sexual harassment. They can also be found liable in other circumstances. Penalties can apply for contravening the prohibition.

A worker can make a complaint about workplace sexual harassment by applying to the Fair Work Commission. Depending on the circumstances, complaints may also be able to be lodged with other government bodies, including the Australian Human Rights Commission.

Some types of sexual harassment may also be offences under criminal law, including:

• physical molestation or assault
• indecent exposure
• sexual assault
• stalking
• obscene communications (such as telephone calls, letters)
• sexually explicit physical contact
• sexually explicit emails or SMS text messages.

Employers may be found liable for discrimination or harassment by their workers or agents if they have not taken all reasonable steps to prevent the discrimination or harassment. What counts as ‘reasonable’ varies between organisations. This is called vicarious liability.

Employers now also have a positive duty under the Sex Discrimination Act to take reasonable and proportionate measures to eliminate workplace sex discrimination, sexual harassment, sex-based harassment, conduct that creates a hostile work environment on the ground of sex, and certain acts of victimisation. Employers may be liable for failing to take steps to eliminate such behaviours, even if no incident has occurred.

The positive duty under the Sex Discrimination Act applies in addition to employers’ duties under work health and safety laws.

It is also against the law to victimise a person for making, or proposing to make, certain complaints alleging discrimination or harassment. 

States and territories also have legislation making sexual harassment and discrimination on the basis of sex unlawful.

This content has been adapted from content created by the Australian Human Rights Commission with permission.