Crossing the Line: Flirting vs Sexual Harassment

The recent media attention on sexual misconduct in Hollywood is a turning point; what may have been considered ‘innocent flirting’ in the 70s and 80s is increasingly being called what it is – unwanted harassment. The public condemnation of film mogul Harvey Weinstein’s conduct has emboldened people to come forward with allegations of sexual misconduct against other celebrities, in what some have described as the ‘Weinstein ripple effect’.

There has been a significant shift in recent years in the way the criminal justice system conceptualises consent, and this has likewise affected the perception of harassment.

Although the Hollywood allegations are of a serious nature, with some amounting to sexual assault and rape, they have also cast the spotlight on work relationships in journalism, entertainment, politics and the everyday workplace -‘the office’. The question arises: what constitutes sexual harassment in 2017?

legal definition of sexual harassment in australia

Although many assume that sexual harassment must occur between a man and a woman, in Australia this is not the case – it can take place between persons identifying with any sex or any gender.

According to the Sex Discrimination Act 1984 (Cth), ‘sexual harassment’ includes unwelcome sexual advances, requests for sexual favours, or other conduct of a sexual nature – the key element being that the behaviour is not welcomed by the recipient.

The conduct needs to be assessed from the viewpoint of a reasonable person and whether the reasonable person would consider, in all the circumstances, that the recipient might be ‘offended, humiliated or intimidated’ by it.

Even more seriously, sexual assault includes a person being forced, coerced or tricked into a sexual act against their will and without their consent. If the victim is a child, it’s sexual assault regardless of any apparent consent.

In cases where sexual assault is alleged in the workplace, the complainant needs to be advised that they can make a complaint to the Police.

Should the conduct involve a minor, it may constitute ‘reportable conduct’ – which is required to be reported in accordance with the relevant state legislation, as well as to the Police.

Many interpersonal interactions between employees are, particularly in their early stages, subtler and more ambiguous than clear examples of harassment. Smiles, winks, compliments, sexual innuendo and humour, suggestive glances, or even a touch on the arm or shoulder could be seen by some as innocent flirting – but perceived by others as harassment. Recipients of such behaviour may wonder whether these comments and behaviours are friendly or sinister in nature, intentional or accidental, a one-time event or likely to persist.

When determining whether behaviour might be sexual harassment, it can be made clearer by answering some important questions, such as:

• Does the recipient seem uncomfortable or fail to respond to comments or discussions?
• Is one person involved in the conversation in a position of authority?
• Could the person making the overtures impose real professional consequences on the recipient if they were turned down?

the role of touching in sexual harassment

It is clear that engaging in unwanted touching is an even more serious offence than making offensive or inappropriate comments or suggestions. For this reason, many employers consider it prudent to ban physical contact in the workplace beyond simple handshakes. Of course, this can also have an impact on how friendly the workplace is perceived as being, so depending on your workplace, it may be more appropriate to closely monitor physical interaction rather than ban it outright. Generally speaking, however, those in positions of power such as managers or supervisors should avoid physical contact where possible.

the role of power and status

Interestingly, studies have revealed that some men in positions of power find their roles inextricably linked to sex – meaning that they struggle to differentiate between women (or other men, if that lines up with their sexual orientation) who are sexually responsive, or who are simply being friendly. For many reasons, not least to protect a business against potential claims of harassment, employers must do their best to minimise the potential for any inappropriate conduct to occur between managers and supervisors and staff. 

So what should employers do?

Employers have a duty of care to their employees to make sure that they are safe and protected while at work. Employers must have clear policies in place on what types of behaviour are considered to be sexual harassment, and how complaints can be made. Policies should be well communicated to all staff, and staff should be educated on what is expected of them regarding behaviour in the workplace.

In order to protect your business and staff against flirting going too far and turning into sexual harassment, contact WISE Workplace today for expert assistance with workplace investigations, anti-sexual harassment training and assistance with reviewing or drafting your policies.