Recent Developments in Sexual Harassment Law: Towards a New Model

‘But It's Your Job To Be Friendly’: Employees Coping With and Contesting Sexual Harassment from Customers in the Service Sector

“…Laws designed to deal with sexual harassment have been reformed in many countries — for example in Australia, the UK and USA (Gettman and Gelfand, ) — to include prohibitions against customer‐perpetrated harassment. In Australia, after a 2008 review, the national Labor Government amended the Sex Discrimination Act 1984 to expand prohibition against sexual harassment from its earlier treatment in the Act, widening the definition around the provision of goods and services to proscribe sexual harassment from customers (Mackay, ; McCrystal and Orchiston, ). These legal changes were intended to redress the previous perversity in the legislation, as prior to this change it was illegal for staff to harass customers, without the equivalent protection for employees in return (AHRC, 2008).…”

“…Sexual harassment is defined under the Sex Discrimination Act 1984 as making an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, in circumstances in which a reasonable person would have anticipated the person harassed would be offended, humiliated or intimidated. (For a discussion of judicial interpretation of these terms in case law, see Mason and Chapman, ; and for how the Sex Discrimination Act was amended in 2008, see Mackay, .) Employers may face claims of vicarious liability unless they can demonstrate that they took all reasonable steps to prevent and address harassment, with many employers having policies outlining their lack of tolerance for sexual harassment, though such policies may neglect customer‐perpetrated harassment (Handy, ).…”

And Which ‘Equality Act’ Would that Be?

“…Before the passage in Victoria of a new Equal Opportunity Act in 2010, the few existing positive equality duties in Australia were limited to employmentand largely to public sector employment-although Mackay makes the point that complying with a positive equality duty in Australia would 'not involve a radical departure from what many employers are already doing to avoid vicarious liability' (for negligence). 172 The best-known explicit positive equality duty in Australia is in the EOWWA, which was the subject of submissions to and discussion by the senate committee, noted above. 173 There is consensus that the EOWWA needs considerable strengthening, but its scope would never be so wide as to obviate the desirability of a general equality duty, as Graycar and Morgan suggest elsewhere in this volume.…”

Naming and claiming workplace sexual harassment in Australia

“…Laws on sexual harassment also frequently refer to the concept of vicarious liability, whereby organisations may be held legally liable unless they can establish that they took all reasonable steps to prevent the sexual harassment at issue or took action to address it after it became evident or was reported (see Markert 2005, for a cross-national comparison of sexual harassment law). Sexual harassment case law reveals additional elements that have been identified as contentious, including the extent to which the harasser could have anticipated that the conduct would be unwelcome, offensive or intimidating, 'standards of reasonableness', including from whose perspective this is considered, and whether the offensive behaviour needs to have been repeated (Mackay 2009;McDonald 2011). Importantly, legal definitions of sexual harassment are not static, but develop over time 'through both judicial and tribunal decision-making and legislative tinkering', making it 'increasingly apparent that the nature, context and harm of sexual harassment defies simplistic definition' (Mason & Chapman 2003: 224).…”