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Sexual harassment was first recognised as a form of unlawful discrimination by an Australian adjudicator almost twenty years ago.[1] In the intervening years, the Commonwealth and all state and territory legislatures have defined it in anti-discrimination statutes as a prohibited behaviour in specified areas of life.[2] Whilst forms of harassing conduct that are not explicitly sexual in nature, such as those based on disability or race, have also come to be recognised as unlawful in a small number of anti-discrimination statutes,[3] sexual harassment undoubtedly commands the most comprehensive history of statutory definition. Given the extent of this history, and in light of these developments regarding other forms of harassment, it seems timely to revisit the development of sexual harassment as a separate legal claim and, in particular, to examine the legislative reforms through which it has been defined as a legal wrong.
The Commonwealth Parliament was the first in Australia to enact legislation that explicitly named sexual harassment as a form of actionable wrong under anti-discrimination legislation. This comment traces the history and development of the definition of sexual harassment in the Sex Discrimination Act 1984 (Cth) ('SDA'). It seeks to crystallise the central concerns of the many critiques that have been made of the definition, particularly those raised by feminist commentators. Part I offers a brief consideration of the social and legal context for the enactment of the sexual harassment provisions in the SDA. It commences by considering Australian developments concerning unwanted sexual conduct in the workplace prior to the enactment of the legislation in 1984. It then describes some of the major international and national influences that contributed to the creation of a legal climate conducive to the enactment of a prohibition on sexual harassment. This discussion reviews the significance and limitations of the decision in O'Callaghan v Loder,[4] the first Australian adjudicative recognition of sexual harassment in an anti-discrimination context. It concludes with an examination of those elements of sexual harassment, as it was initially defined under s 28(3) of the SDA, that attracted the most attention of commentators. In 1992, this definition of sexual harassment was redrafted in a manner that addressed a number of these concerns. Part II of the comment explores the significance of these amendments by synthesising the critical evaluations that continue to be made of this current definition. These critiques can be reduced to four specific elements of the definition: 'unwelcome conduct of a sexual nature'; 'in relation to'; 'reasonable person'; and 'offended, humiliated, or intimidated'.
Sexual harassment law has offered Australian women an invaluable means of redress for the harms that they have experienced, and continue to experience, in the public sphere (particularly in the workplace).[5] It has also engendered a plethora of educational and policy campaigns designed to highlight the unacceptable nature of such harassment and, in turn, to reduce its prevalence. Despite these achievements, the current legislative definitions of sexual harassment continue to attract significant critical evaluation. In surveying the history of the Commonwealth definition of sexual harassment, and its major critiques, the comment seeks to provide an informed account from which to debate the future direction of harassment law in Australia.
The impetus to introduce sexual harassment provisions as part of Australian sex discrimination legislation needs to be understood as part of a broader international movement for recognition of the human rights of women.[6] This movement involved a number of distinct influences. In the United States, for instance, discrimination legislation was introduced in the early 1970s.[7] Although the term sexual harassment is said to have come into popular usage in the United States shortly afterwards,[8] it was not until later in the decade that there was a tentative acceptance of some forms of sexual harassment within sex discrimination law.[9] In 1979, Catharine MacKinnon proposed a theoretical understanding of the term in her book, Sexual Harassment of Working Women.[10] MacKinnon's work did much to highlight the widespread and gendered nature of sexual harassment. She estimated that, at that time, up to seven out of ten women (in the United States) could expect to be affected by some sort of sexual harassment during their working lives.[11] Moreover, she argued that sexual harassment was not a form of misdirected sexual desire but rather was an injury to women arising from the systemic social inequality between men and women. For MacKinnon, the most appropriate way to respond to sexual harassment was through the introduction of separate statutory provisions. Such provisions, she suggested, would be preferable to the individualistic, 'disabling (and cloying) moralism' of existing tort law, which, at the time, was the primary avenue of complaint regarding unwanted sexual conduct in United States workplaces.[12]
In tune with these developments in the United States, women's organisations in Australia, such as the Women's Electoral Lobby, began pressing for legal and social recognition of sex discrimination from the early 1970s.[13] This movement was strongly influenced by Australia's ratification of two key international conventions.[14] In 1973 Australia ratified the ILO's Discrimination (Employment and Occupation) Convention ('ILO Convention 111') [15] and, later in 1983 it ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women, 1979 ('CEDAW').[16] The International Decade of Women, commencing in 1975, increased global awareness of discrimination against women and the need for government action.[17] In consequence of ratifying ILO Convention 111, later that year the federal government established a National Committee on Discrimination in Employment and Occupation and six state committees.[18] These committees did not have statutory powers. Rather, they were devised as an interim measure before the intended passage of anti-discrimination legislation. The committees were composed of representatives from employer groups, trade unions and the government. As non-statutory bodies, they lacked power to impose legal sanctions but, instead, relied on a process of 'conciliation and persuasion' to address complaints of discrimination in employment and occupation.[19] In addition, each committee had a role in initiating public education campaigns to raise awareness about discrimination in employment.[20] State committees dealt with complaints of discrimination within their geographic area.[21] If unable to resolve the complaint, the state committee might, with the complainant's agreement, refer the complaint to the national committee for its attention. Complaints that the national committee were unable to resolve might result in a report tabled in the Commonwealth Parliament.[22]
In 1981, the national committee was reported to have established a policy that identified sexual harassment as a form of sex discrimination.[23] The 1982–3 annual report of the national committee defined sexual harassment inclusively as arising when:
a person is denied equality of opportunity or treatment because that person has refused to grant sexual favours or to accept conduct of a sexual nature, such conduct being conduct that a reasonable person would regard as offensive; or
a person is denied protection against conduct of a sexual nature, such conduct being conduct that a reasonable person would regard as offensive.[24]
Interestingly, the annual report contained a specification of the criteria that would need to be established to substantiate a complaint of sexual harassment. These were:
1. (a) Either the behaviour is conduct that a reasonable person could regard as offensive and it is continued after a complainant has indicated clearly that it is unwelcome; or
(b) the behaviour constitutes an indecent assault or was grossly offensive.
2. (a) Either the employee's job prospects are threatened; or
(b) the behaviour interferes with the employee's performance at work or creates a hostile working environment.[25]
As more and more jurisdictions enacted anti-discrimination legislation—the first such legislation was introduced in South Australia in 1975[26]—the role of these committees gradually atrophied. With the enactment of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the functions of the national committee and state committees were absorbed by the Human Rights and Equal Opportunity Commission.
Although sex discrimination legislation was not introduced by the Commonwealth until 1984, states such as New South Wales and Victoria followed South Australia's lead and enacted anti-discrimination legislation covering the ground of sex in 1977.[27] Unlike the 1984 Commonwealth Act, which would include sexual harassment as a separate ground of complaint, this earlier state legislation did not make mention of sexual harassment. Nevertheless, the Commissions and Boards established to administer the state legislation and to investigate and attempt to conciliate complaints, began to use the term sexual harassment before it was defined in legislation. For example, the Victorian Commissioner for Equal Opportunity, Fay Marles, made explicit reference to sexual harassment as early as 1979.[28] In her annual report she noted that 'despite the small number of substantiated cases [to date], the frequency and source of reports suggests that such sexual exploitation could be widespread'.[29] The kinds of exploitation she referred to ranged from 'verbal innuendo to physical fondling or even to explicit demands for [sexual] intercourse'.[30] In the following year Commissioner Marles annexed a bulletin titled 'Sexual Harassment' to her annual report.[31] This reported stated that '[s]ince the Equal Opportunity Act came into force in April, 1978, more than twenty women ha[d] complained that they ha[d] been subjected to sexual pressure in the workforce'.[32] Commissioner Marles noted two primary elements in these complaints: first, that complainants had been subjected to 'some form of unwelcome sexual attention or demand in the workplace and secondly, that by their non-compliance they ha[d] jeopardised their employment situation in some way'.[33] She voiced concern at the tendency for those in authority to regard the problem as a 'clash of personalities rather than the intimidation of one person by another'.[34] The annual report canvassed options for dealing with sexual harassment under the sex discrimination provisions in the Victorian Act.[35] By 1982, the Victorian Equal Opportunity Commissioner had handled a total of 82 complaints of sexual harassment and was devoting an entire chapter to the problem in her annual report.[36] Sexual harassment was classified as any 'sexual behaviour' that was 'unwanted' and which had 'adverse implications for the complainant's employment, education, accommodation or receipt of goods and services'.[37]
Meanwhile in NSW, the Anti-Discrimination Board first made mention of sexual harassment when it reported in its 1979–80 annual report that it had received twenty complaints, both formal and informal, of sexual harassment.[38] None of these complaints were referred to the Board for inquiry due to the complainants' reluctance to face public scrutiny. The Board's annual report records that the behaviours complained of had 'little to do with romance or honest sexuality' but were a 'question of power and intimidation'. Complaints included: 'repeated lurid and crude jokes about female workers; constant leering with pinching, squeezing or brushing against; a display of pornographic literature with genitalia labelled with the woman's name; trapping a woman alone during overtime periods leading to forced sexual intimacy; outright sexual propositions backed by threats of dismissal or denial of promotion'; and 'forced sexual relations'.[39] The report noted that many employers found it incomprehensible that something that they characterised as a joke, compliment or triviality should be upsetting, demeaning or intimidating to women.[40] Unlike its Victorian counterpart, the NSW Anti-Discrimination Board refrained from commenting on whether these kinds of complaints fell within the ambit of the state sex discrimination legislative provisions. Indeed, it questioned whether the existing law could adequately deal with the problem, suggesting that other avenues—such as internal grievance procedures, claims for unfair dismissal or civil suits for personal injury—might prove to be more effective.[41]
In attempting to address the specific problem of sexual harassment and to further its role in community education, the NSW Board called on all public and private sector employers to issue statements to the effect that sexual harassment would not be tolerated. In the Board's view, the statement should set out the available remedies to people who have been harassed.[42] In response to this the NSW Public Service Board published and distributed a sexual harassment policy in 1981. It defined sexual harassment as 'behaviour which is not welcome, which is personally offensive, debilitates morale, and interferes with the work effectiveness of its victims and their co-workers'. The policy recognised sexual harassment as part of sex discrimination and unequivocally stated that the behaviour was unacceptable.[43] This initiative of the NSW Public Service Board gained favourable recognition when it was put forward by the Anti-Discrimination Board as a model that other institutions were encouraged to follow.[44]
Clearly, the state agencies were adopting a pro-active role in the development of the notion of sexual harassment. Well before any express sexual harassment legislative provision was mooted, these agencies were involved in education campaigns, particularly in the workforce. They were warning employers of their responsibilities towards their employees and of the potential for liability under sex discrimination law, while simultaneously encouraging complainants to come forward. Perhaps more importantly, they were asserting their own definitions of what constituted sexual harassment and were even suggesting how it may be actionable within existing law. Each annual report added testimony to the growing problem of unwanted sexual behaviour in the workplace. Together, they provided a cumulative, statistical database attesting to the escalating problem of sexual harassment. This served as an annual reminder of the problem to each state's respective parliament.
While the importance of these state agencies cannot be underestimated, they were not the only forums to hear complaints during this period. Women were also using less formal avenues. For example, the Melbourne Working Women's Centre claimed to have received complaints from its commencement in 1976[45] and some unions were also recording complaints and disseminating information to their members about sexual harassment.[46] Women were clearly adopting the label and using it to define their grievances despite the lack of explicit legal sanction.
The year 2001 marked the twentieth anniversary of the initial events that took place between Loder and O'Callaghan, the case that first beckoned sexual harassment into Australian case law. O'Callaghan, a junior lift attendant and another work colleague had lodged separate complaints with the President of the NSW Anti-Discrimination Board, alleging sex discrimination on the basis that they had been sexually harassed by Loder, the Commissioner for Main Roads.[48] A preliminary hearing ruled that the women's complaints were to be heard separately but consecutively, dealing first with O'Callaghan's complaint. [49] The disparity in status between the parties was magnified in the proceedings that followed. The Commissioner, whose defence was financed by the state government, mounted several technical challenges to the jurisdiction of the tribunal.[50]
The tribunal noted the difficulty in attempting to make factual findings about matters that occurred in private, particularly as the accounts given by O'Callaghan and Loder diverged so markedly.[51] It was undisputed that O'Callaghan, at the invitation of Loder, visited his office on frequent occasions between June and September 1981. O'Callaghan alleged that on one occasion in September, Loder forced her to hold his exposed penis until he ejaculated, an allegation emphatically denied by Loder.[52] Although the tribunal declined to determine exactly what occurred on this occasion, it did find that some sexual activity had taken place between the parties, probably of 'a relatively minor nature' between June and September 1981, and of 'a more significant nature' on one final occasion in September.[53] It found that whatever had in fact taken place during September, it was clearly unexpected and unwelcome by the complainant, and that it had caused her much distress.[54] Nonetheless, O'Callaghan was unable to satisfy the tribunal that she had adequately conveyed to Loder that his conduct was unwelcome, and it was on this point that her case failed.[55]
Despite O'Callaghan's ultimate failure, the tribunal decision was hailed as a landmark.[56] In this first Australian attempt at a legal definition, sexual harassment was found to be a form of direct discrimination as it amounted to less favourable treatment of a person on the ground of their sex, when compared to a person of the opposite sex, in similar circumstances.[57] Justice Mathews, in ascribing the widest possible meaning to the phrase, defined sexual harassment as occurring where a person is 'subjected to unsolicited and unwelcome sexual conduct by a person who stands in a position of power in relation to him or her.'[58] In order to come within the legislative proscription of direct discrimination on the ground of sex, the sexual harassment must have either constituted an 'unwelcome feature of the employment',[59] or must have been accompanied by (tangible) adverse employment consequences to the complainant, such as dismissal or reduction in hours worked.[60] According to Mathews J, a single act of sexual harassment can potentially constitute unlawful sex discrimination. Importantly, if the single act was followed by retaliation involving tangible employment detriment to the employee, this would be within the direct discrimination provisions.[61] Alternatively, where a single incident so tainted the working environment as to 'create an unwelcome feature of the employment in a continuing rather than an isolated sense', this would also constitute unlawful sex discrimination.[62]
The most controversial requirement imposed by the tribunal was the finding that the sexual harassment must occur in circumstances where 'the employer knew or ought to have known that the conduct was unwelcome'.[63] In other words, the employer 'must either know that his conduct is unwelcome, or the circumstances must be such that he should know it'.[64] This placed an onus on the employee to make the unwelcomeness known to her employer. It was on this point that O'Callaghan failed, despite the tribunal's acknowledgement that the larger the disparity in status and power between the employer and employee, the greater the obligation on the part of the employer to observe any unwillingness on the employee's part.[65] Although the tribunal had drawn an adverse inference against Loder, in consequence of his blanket denial that any sexual activity had taken place, it was not prepared to extend this adverse finding further to infer that Loder knew his conduct was unwelcome.[66] In summing up the decision, Mathews J stated that
[B]efore a sexual approach from an employer to an employee can contravene the law, there must be an additional blameworthy feature. The employer must either be using his position of power in order to obtain sexual favours, or he must be on notice that his attentions are unwelcome to the employee.[67]
Discouraged by the tribunal's finding, feminist scholars were quick to respond. Their major criticism centred upon the requirement that the complainant must make it known to the respondent that the conduct was unwelcome. In Thornton's opinion, the tribunal's view that Loder 'was not to know that she would internalise distress rather than voice it' was 'naïve'.[68] It went against the 'very essence' of sexual harassment, namely, the 'inability of the victim to speak out because of fear of retaliation from the more powerful harasser'.[69] Writing in 1985, Scutt pointed out that 'very few women would ever be in a position to prove sexual harassment if one of the conditions is that she must have made it obvious beyond any reasonable doubt to the respondent that the sexual activity was unwelcome'.[70] To Scutt's way of thinking, the position of women in relation to men was generally one of 'relative powerlessness', and thus any unequivocal rejection of sexual harassment would require 'the possession of a degree of self-esteem or socialisation not generally found in women'.[71] For Scutt, where the harasser is the woman's employer, as in O'Callaghan's Case, it is even less likely that a woman would complain.[72]
Critics questioned why unwelcomeness should be a required element at all. Mills, for example, asked why it was necessary for a complainant to prove that the 'sexual advance was unsolicited and unwelcome and that the employer knew it was unwelcome', when intention to discriminate was not a requirement in other instances of unlawful sex discrimination.[73] Mills suggested that this concept of knowledge substituted the perspective of the harasser for that of the woman harassed. Surely the central issue was whether there could be said to be 'less favourable treatment' by an employer of the employee. Thus the test should be 'whether or not the sexual conduct create[d] an unwelcome feature of employment'; and, if so, then it would meet the definition of discrimination and obviate the need for any examination of unwelcomeness.[74] In order to combat what she described as a presumption of disbelief that operated against women in such cases, Thornton argued in favour of the American model, 'where the burden shifts to the respondent to affirmatively establish that the harassment did not occur once a prima facie case is made out' by the complainant.[75] Seeking to put men on notice that their attentions, particularly in the workplace, were not necessarily welcome, Scutt went a little further and argued in favour of placing the onus on the respondent 'to show that he did not know that his attentions were unwelcome'.[76]
Also attracting substantial critique was the finding by Mathews J that sexual harassment was harassment carried out by someone standing in a position of power in relation to the complainant.[77] Clearly, much would rest on how the concept of 'power' was to be interpreted. At the time, Tiffin argued that it would be a mistake to interpret power solely as a question of the institutional inequalities that operate within workplace hierarchies. Such a narrow interpretation would fail to provide women with an avenue of redress against harassing behaviour from co-workers and others (such as men harassing women in positions of superiority or male students harassing female teachers). Instead, Tiffin asserted that power should be understood as a question of gender, that is, of the broad power that men as a group exercise over women as a group.[78] Morgan, however, had little doubt that in her judgment, Mathews J was referring to power in the narrow sense of hierarchical employment and not in the broader sense of gender.[79] Indeed, it was this confined understanding of power that was taken up in the definition of sexual harassment introduced with the Sex Discrimination Act 1984 (Cth) shortly afterwards. The legislative requirement that a complainant show that she had been disadvantaged in her employment, or that she had reasonable grounds for believing that she would be so disadvantaged, meant that the respondent needed to be in a position whereby he could exact such disadvantage, thereby implying superiority of rank over the complainant.[80] This requirement detracted from the explicit provision in the statute that one employee could harass another.[81]
Whether the O'Callaghan Case can now be viewed as an important, although incremental, step towards the provision of appropriate redress for sexual harassment or whether, as Scutt has asserted, it gave only the illusion of advance, is debatable. Early critics of the decision found tangential support for their critiques in the annual report of the NSW Anti-Discrimination Board published the year after the judgment in O'Callaghan was handed down. For the first time since sexual harassment had been recognised by the Board, there was a marked decline in the numbers of complaints. The President cited the failure of the complaint brought by O'Callaghan and the accompanying publicity that enveloped the case as reasons for this decrease.[82] Conversely, the decision also attracted praise as a well-argued and courageous judgment in extremely difficult circumstances by Mathews J, who was the only woman Judge within the NSW court system at the time.[83] Of particular import for the present discussion was the influence that the case brought to bear on the drafting of the Commonwealth SDA.
In 1981, Senator Susan Ryan (Australian Labor Party) introduced a private member's Bill into the Commonwealth Parliament to proscribe sex and marital status discrimination.[84] The Bill failed to gain the support of the incumbent (Liberal National Party Coalition) government and it lapsed with the federal election held in 1983. The election saw a change in government and later that year Senator Ryan introduced a second Sex Discrimination Bill into the Senate.[85] This second attempt coincided with the O'Callaghan decision.[86] After lengthy and heated parliamentary debate, considerable redrafting and compromise, the SDA was enacted in 1984.[87] Unlike the earlier 1981 federal Bill, and the earlier state sex discrimination statutes, the 1983 Sex Discrimination Bill expressly prohibited sexual harassment. Thornton writes that this explicit inclusion was a result of pressure brought to bear by women's groups.[88] Those opposed to this inclusion had to be content with assurances from Senator Ryan that it was not an 'attempt to deal with all forms of sexual harassment but only with sexual harassment which can be characterised as discriminatory in nature'.[89] It was thus the first Australian statute to define sexual harassment, while confirming its status as a form of sex discrimination.[90]
Under this original definition a person sexually harassed another if they made an 'unwelcome sexual advance', or an 'unwelcome request for sexual favours', or 'engaged in other unwelcome conduct of a sexual nature' in relation to the other person.[91] In addition, the complainant bore the onus of establishing that her rejection of the unwelcome sexual conduct had caused her to suffer actual disadvantage in connection with her employment (or possible employment) or, alternatively, that she had reasonable grounds for believing that such refusal, rejection or objection would disadvantage her in connection with her employment (or possible employment).[92] The Act made it unlawful to sexually harass an employee, a co-worker or an applicant for a job in the workplace. There were similar protections for, and from, contract workers and commission agents.[93] Employers were vicariously liable for sexual harassment committed by their employees and agents, unless they could show that they had taken all reasonable steps to prevent the conduct from occurring.[94] Sexual harassment in the area of education was also proscribed.[95]
Critics of this initial definition were particularly concerned with the ways that it would be interpreted. Their disquiet centred on several issues: whether a single incident could constitute sexual harassment; how broadly 'disadvantage' and 'reasonable belief' would be defined; and whether the need for disadvantage would preclude the availability of the form of sexual harassment known in the United States as 'hostile work environment'.
The potential, laid down in O'Callaghan, for a single incident to constitute sexual harassment would seem to have been codified in the SDA by the choice of the phrase 'an unwelcome sexual advance or an unwelcome request for sexual favours' (emphasis added).[96] However, judicial references to dictionary meanings of 'harass', which infer repetition, fuelled early uncertainty about this.[97] In Hall v Sheiban ('Sheiban') (where damages were not awarded to three medical receptionists despite a tribunal finding that they had been sexually harassed by their employer), Einfeld J, in obiter dicta, stated that 'unlawfulness require[d] not merely the offending acts or words themselves, but also the accompanying factor of repetition after resistance or disapproval'.[98]
Whilst some shared the concern of Einfeld J about the way that the legislation might unduly limit working relationships,[99] others were alarmed at the message that Einfeld J transmitted to the working public. Morgan, for example, condemned Einfeld J's position as unnecessary and misleading.[100] She argued that the definition of sexual harassment under the SDA made it unacceptable 'for an employer, in a position of power, to place a hand on an employee even once'.[101] Indeed, the view of Einfeld J on the need for repetition in the conduct was later overturned by the Federal Court in the ensuing Sheiban[102] appeal. Justice Lockhart stated that the definition of sexual harassment in the SDA 'clearly is capable of including a single action and provides no warrant for necessarily importing a continuous or repeated course of conduct'.[103]
The requirement that the respondent know that the sexual conduct was unwelcome to the complainant, as set down in O'Callaghan, was not directly addressed in the Commonwealth SDA definition. In an apparent shift away from the emphasis in O'Callaghan on the perspective of the perpetrator, and toward that of the complainant, the SDA required that the complainant experience actual disadvantage related to her employment (or possible employment) resulting from her objection to the sexual conduct, or that she have reasonable grounds for fearing that such disadvantage would follow.[104] The central legislative concepts of 'reasonable grounds for believing' and 'disadvantaged' were not defined in the Act. It was soon realised that much would depend on how these phrases were interpreted by tribunals and courts. Critics wondered whether the subtle disadvantage experienced by a woman in 'going along' with unwanted sexual conduct and attention in a workplace, rather than actively objecting to it, would be encompassed by the notion of disadvantage. The concern was that the legislative intent of the SDA would be interpreted by tribunals and courts in a way that limited protection to 'blackmail' type practices involving overt trade offs of sexual conduct for job security.[105]
In relation to the other central requirement in the SDA formula—'reasonable grounds for believing'—concerns were expressed that too much emphasis would be placed by tribunals and courts on the reasonableness or otherwise of the fear of disadvantage.[106] This concern proved to be well-founded. In Sheiban, Einfeld J determined that because the complainants had been subsequently employed after refusing to answer inappropriate questions in their pre-employment interviews, they could not have entertained reasonable fears that they would be disadvantaged.[107] However, on appeal, it was found that Einfeld J had erred in his understanding of the statutory definition as he had substituted a definition requiring that the complainants actually suffer disadvantage (in failing to be offered the positions) in place of the statutory definition of reasonable apprehension of disadvantage laid out in the SDA.[108]
The interpretation of reasonably feared disadvantage was also important in the context of what might be called 'hostile work environment' sexual harassment claims; that is, in situations 'where the workplace is so imbued with sexuality that it is recognised as, in itself, a discriminatory environment, regardless of any direct or tangible job detriment to an individual'.[109] At face value it appeared that the requirement that a complainant show that she had suffered a disadvantage, or (reasonably) feared the possibility thereof, would preclude any claim for 'hostile work environment' harassment. Nonetheless, the definition in the SDA was not read in this restrictive manner by tribunals and courts.[110] Some decisions made references, albeit in obiter dicta, that included 'hostile work environment' sexual harassment within the ambit of the Commonwealth SDA definition.[111]
While commentators generally considered the Commonwealth SDA definition to be an improvement on the one laid down in O'Callaghan, particularly due to the focal shift from harasser to complainant and the protection for co-worker harassment, there was increasing dissatisfaction with the Act's limitations. As public awareness increased, so did the pressure for reform.
In 1992, amendments were made to the Commonwealth definition of sexual harassment in the SDA.[112] This set of amendments followed an inquiry by a House of Representatives Standing Committee that had commenced in 1989.[113] The terms of reference of the Committee were to investigate the progress made towards equality of opportunity and equal status for women in Australia.[114] The report contained two important recommendations regarding the definition of sexual harassment in the SDA. First, the Committee recommended that the Act be significantly broadened to proscribe sexual harassment that occurred in a wider range of areas and types of relationships.[115] Secondly, the Committee urged that the SDA be amended to remove the need for a complainant to demonstrate actual or reasonably anticipated employment disadvantage in a claim of sexual harassment.[116] In reaching this recommendation, the Committee took account of the change in public attitudes towards sexual harassment, noting that '[i]t is now widely understood that sexual harassment is not a trivial matter'.[117] Rather, in the view of the Committee, the general public regarded unwanted sexual advances as 'serious offences in themselves' and so need not be linked to some sort of additional disadvantage or detriment.[118] The Committee concluded that the original definition of sexual harassment in the SDA ought to be replaced by a definition similar to that adopted by the ACT Parliament in its Discrimination Act 1991 (ACT).[119]
The government's reaction was swift. By the time its official response to the Committee's recommendations was published in December 1992, the federal Parliament had already enacted legislation with the purpose of strengthening the SDA.[120] The replacement definition of sexual harassment, contained in s 28A(1) of the SDA, is as follows:
For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
This definition came into force on 13 January 1993 and remains the current Commonwealth formulation of sexual harassment contained in the SDA. This latter part of the paper focuses on the major critical evaluations of four elements of this definition: 'unwelcome conduct of a sexual nature'; 'in relation to'; 'reasonable person'; and the formula of 'offended, humiliated, or intimidated'.
The 1992 amendments provided little change to the requirement of unwelcomeness, which applies in relation to sexual advances, requests for sexual favours, or other conduct of a sexual nature. The most significant change brought about by the amendments was that the complainant need no longer establish that either the unwelcome sexual conduct was accompanied by actual work-related disadvantage or detriment, or that she had reasonable grounds for believing that it would be.[121] The Human Rights and Equal Opportunity Commission Code of Practice on sexual harassment has interpreted unwelcomeness as a subjective matter that is dependent upon the response of the individual person who alleges that they have been harassed. It is accordingly irrelevant whether the behaviour does, or does not, offend others.[122] Although the requirement that the respondent know that his behaviour is unwelcome to the complainant has been given a different emphasis in tribunal decisions since O'Callaghan,[123] it remains a central factor to be considered under the current SDA test of sexual harassment.[124] For this reason, many of the debates concerning the requirement of unwelcomeness that surrounded the O'Callaghan decision continue to be relevant, particularly those that warn of the difficulties that women face in voicing their objection to unwelcome sexual behaviour in the workplace.
The concept of 'conduct of a sexual nature' remained largely unchanged after the 1992 amendments.[125] The current definition provides that this phrase 'includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing'. Although attempts have been made by tribunals and agencies to more precisely delineate, in an inclusive manner, the meaning of 'conduct of a sexual nature', the boundaries remain unclear.[126] This is particularly so in relation to determining whether unwelcome behaviour had a sexual element or implication in it, or whether it might be more accurately categorised as bullying or harassment that is not sexual in nature.[127] Whilst the most serious forms of sexual harassment may be readily recognised, the adjudicative doubt that surrounds the question of harm in gendered injuries, means that '[l]ess overt acts' may still be 'resistant to compression within the legal form'; that is, some sexual harassment 'may be so subtle and insidious that it is accepted as part of the organisational culture and is certainly not tractable to amelioration within the sex discrimination law'.[128] For example, in the (subsequently overturned) decision of the Human Rights and Equal Opportunity Commission in Sheiban,[129] the behaviour of Dr Sheiban was seen as too trivial to support an order for damages to be paid by way of compensation. Despite finding that the respondent had engaged in sexual harassment by placing his hand underneath a complainant's uniform to touch her inner thigh, holding one of the complainants around the neck, and lowering the zips to bra level on the uniforms of two complainants, the harm to the complainants was seen by Einfeld J as merely temporary distress of a minimal nature. Einfeld J said that women with the ordinary experience of everyday life should not have experienced any harm from Dr Sheiban's behaviour.[130]
Some of the most persistent criticisms levelled at the Commonwealth SDA concepts of 'unwelcome sexual advance' and 'other unwelcome conduct of a sexual nature' have been made in the context of broader concerns around anti-discrimination legislation in general. These concerns centre upon the extent to which such legislation is committed to maintaining a distinction between public and private spheres of life, a distinction that is greatly valued in traditional liberal philosophy. This public/private dichotomy is said to encourage a presumption that law should only intervene in relation to unwelcome sexual conduct that occurs within the public sphere. As evidence of this, commentators cite the fact that sex discrimination legislation only prohibits unwelcome sexual conduct that takes place in a narrow group of specified public domains, such as the workplace, educational institutions, or in the provision of goods and services. This is in tune with the liberal ideal that public spaces should be untainted by irrational sexual activity; such activity is best kept to the home and other privatised domains.[131] Nonetheless, it should be acknowledged that the very recognition of sexual harassment as an unlawful form of sex discrimination inevitably introduces a supposedly private matter (sexuality) into the public sphere of law.[132] Such an incursion must contribute to a weakening, even if only minimally, of the liberal assumption that it is possible to uphold a coherent demarcation between public and private spheres of life.[133] Yet, even as sexual harassment legislation has gradually been expanded to include a greater number of public arenas, it is notable that the 'privacy' of the home remains beyond its reach.[134] Moreover, it is striking that most Australian sexual harassment legislation does not regulate what is probably the most common form of unwelcome sexual conduct: the kinds of harassment that women experience on the street.[135] It has been suggested that the failure to prohibit this type of sexual harassment reveals the fact that sexual harassment legislation does not seek to protect women from unwanted sexual attention by men in the public sphere as a whole, but, rather, aims to regulate only 'those facets of civil society which are central to capitalism' and only those sexual practices which engender inefficient work and other practices that detract from productivity.[136]
In addition to concerns about the limited areas of life that come within the ambit of sexual harassment proscription, criticism has also been made of the emphasis that legislative definitions of sexual harassment place on the question of sexual conduct. Crosthwaite and Priest, for example, note the uncertainty in the term 'conduct of a sexual nature'. This could mean 'harassment by means of sexual behaviour, or harassment on the basis of the sex of the victim'.[137] Both interpretations, they argue, fail to capture the essence of sexual harassment.[138] Picking up on earlier feminist arguments that sexual harassment is a question of power and not sex,[139] they suggest that legislative definitions should emphasise, not the sexual nature of the behaviour but, rather, the way that the behaviour contributes to the maintenance of gender power relations. Hence, they suggest an alternative definition of sexual harassment as
any form of sexual behaviour by members of a dominant gender group towards members of a subordinate gender group whose typical effect is to cause members of the subordinate group to experience their powerlessness as a member of that group.[140]
Other commentators, however, have noted that a definition that placed the emphasis on gendered power dynamics would make sexual harassment legislation both too broad and too narrow: too broad, because it would have the potential to encompass consensual sexual behaviour influenced by a 'Mills and Boon' style love script of a strong man overpowering a subordinate, passive woman;[141] and too narrow because it assumes that sexual harassment is solely the product of patriarchy, thus excluding harassing behaviour by women, or by men towards other men.[142]
Nevertheless, the issue raised by Crosthwaite and Priest underscores the possibility that conduct that is a consequence of a person's sex, yet not strictly of a sexual nature, may fall outside the sexual harassment provisions.[143] This problem was evident from an early time. In the 1985 case of Hill v Water Resources Commission,[144] Hill's troubles began when she received a promotion that resulted in her becoming the first woman to enter a workplace area that had previously been the exclusive province of men.[145] Her maltreatment by work colleagues included: tossing boxes to her using unnecessary force; phone calls to her in which nobody spoke at all, or a recorded message from a VD clinic was played; receiving anonymous threatening and offensive mail through the internal mail system; the disappearance of mail that she expected to receive; a co-worker telling her that he had fed her goldfish to a bigger fish; the smearing of toilets (converted from male to female usage) with faeces; and her male co-workers refusing to eat hot cross buns which she had brought to work to share.[146] The tribunal found that '[o]n a daily level at the workplace there was ... a pattern of behaviour, mainly from the men in the Commercial Branch, calculated to make female employees, and especially the complainant, feel uncomfortable and unwelcome.'[147] The tribunal adopted the approach to the meaning of sexual harassment taken by Mathews J in O'Callaghan and found that Hill had been 'harassed' and subjected to an 'increasingly damaging hostile work environment ... so serious and so continuous as to affect adversely the terms and conditions of work which the employer "afforded" her'.[148] The tribunal determined that the behaviour constituted unlawful sex discrimination.[149] What is notable in this decision is that the tribunal assiduously avoided the label of sexual harassment, preferring to describe the conduct as 'gender based harassment', 'sexist' harassment, or simply 'harassment'.[150]
Similarly, in a more recent case, Horne v Press Clough,[151] two complainants were ridiculed, verbally harassed and intimidated after they complained about sexually explicit posters in rooms which they were required to clean as part of their employment.[152] While reinforcing the right of employees to 'quiet enjoyment of one's employment', which extends to 'not having to work in an unsought sexually permeated work environment', the case was decided on the basis that the complainants had been discriminated against, as distinct from sexually harassed.[153] Interestingly, a comparatively expansive view of 'conduct of a sexual nature' in the sexual harassment definition was accepted the same year in Djokic v Sinclair.[154] In this case, although the Human Rights and Equal Opportunity Commission was not satisfied that deliberate touching in a sexual manner had occurred, it did find that the perpetrator's 'general demeanour towards the complainant over a sustained period reflected a hostility based on her sex that was oppressive to her and constituted sexual harassment'. The Commission described the behaviour as 'pushing' the complainant over a sustained period of time and concluded it was a 'serious abuse of power'.[155]
This kind of behaviour, often categorised as 'sex-based' or 'gender based' harassment, has been codified to some extent in the Tasmanian anti-discrimination statute.[156] Elsewhere, including under the SDA, there is still uncertainty as to whether such behaviour is a form of 'hostile work environment' sexual harassment, and as such unlawful under the sexual harassment legislative proscriptions, or whether it must be brought as sex discrimination.[157] Despite the tacit inclusion of hostile work environment harassment within the ambit of sexual harassment that dates back to O'Callaghan, the term has not been unequivocally embraced as being within legislative definitions of sexual harassment.[158] It remains unclear how these labels relate to each other and how snugly they fit under the aegis of 'conduct of a sexual nature' in the Commonwealth SDA.
A related situation in which the generic label of sex discrimination may be preferred to sexual harassment is where the conduct does not satisfy the relational aspects of the definition. Although the removal of a need to show employment disadvantage (additional to the unwelcome sexual conduct) provides greater opportunity to bring hostile work environment within the legislative parameters of sexual harassment, this potential may still be limited by the requirement under the SDA that the sexual conduct occur 'to' or 'in relation to' the person harassed.[159] For example, in A v B, a nurse, the only woman employee at a boarding school for boys, complained that her work environment was imbued with sexual jokes and innuendo, and that this constituted a hostile work environment.[160] The complainant failed in her complaint of sexual harassment on the ground that the sexual comments and innuendo did not occur 'in relation to' her. Rather, the comments appeared to be 'part of the general work environment and there was no evidence that ... [the behaviour] was directed to or accentuated by the presence of the Complainant'.[161] MacDermott notes that in such instances—where a hostile work environment is created without the hostility being specifically directed towards, or made in relation to, a particular individual—there may still be the need to bring the complaint under the general sex discrimination provisions rather than the sexual harassment provisions.[162] Fortunately, complainants may choose to simultaneously lodge a complaint under both a sexual harassment proscription and direct discrimination on the ground of sex, although different exemptions may effectively limit a complainant's options.[163]
The reasonableness requirement in the legislative concept of sexual harassment has been the subject of much critique. The crux of the problem seems to lie in the question of whose perspective will be taken into account in determining reasonableness.[164] The original SDA definition of sexual harassment required, in the absence of actual disadvantage (over and above the unwelcome sexual conduct), that a complainant have reasonable grounds for believing that she would be disadvantaged in some way following an objection to unwelcome sexual conduct.[165] In the new definition, inserted in 1992, reasonableness appears in the context of whether a reasonable person, having regard to all the circumstances, would have anticipated that the complainant would be offended, humiliated or intimidated by the behaviour.[166] Whilst the language of the SDA uses a sex-blind 'reasonable person' test, the reality is that sexual harassment is a highly gendered behaviour: women are usually the complainants and men are usually the perpetrators.[167] This disparity, veiled by the neutrality of the language, becomes acute in cases evaluating 'hostile work environment' sexual harassment claims, particularly those arising in traditionally male workplaces. Here, a woman may well experience a situation as offensive, humiliating or intimidating even when that behaviour is not directed solely towards her as an individual woman. The question of whether or not her response is reasonable cannot be answered by recourse to a supposed universal social standard of the 'reasonable person' without running the risk of ignoring the experiences of women. Quite simply, it may well be that there is no such objective standard.
It is widely acknowledged amongst feminist scholars that liberal legal concepts, including reasonableness, are derived from, and continue to be interpreted by the law from a masculine perspective.[168] Despite general accord among commentators that the concept of reasonableness in sexual harassment law poses a risk of replicating the harasser's perspective, opinions differ as to how this problem might best be overcome. Some have argued in favour of a 'reasonable woman' standard. [169] For example, in their book published in 2000, Forell and Matthews propose that courts apply a 'reasonable woman' standard to the conduct of men in relation to gendered harms such as sexual harassment. For the authors the objective of making woman the measure of man is to force the legal system to recognise women's perspectives.[170] While the 'reasonable woman' test has been recognised in some United States decisions,[171] the term has not been adopted in Australia. This may have much to do with the Federal Court's response to Einfeld J's foray into the mind of the reasonable woman in Sheiban. On appeal, Einfeld J was found to have made a number of mistakes in law concerning the issue of reasonableness.[172] In his assessment of damages, Einfeld J was in error when he applied a test of the 'ordinary reasonable woman', to the question of whether or not the complainants had suffered compensable harm. Despite this attempt to base his decision on the anticipated response of the ordinary reasonable woman, Einfeld J appeared to lack an understanding of the women's perspectives in the case before him.[173] Morgan argues that his difficulties lay in a failure to view the sexual harassment 'as properly harmful: [believing that] if women were hurt that must be their problem, they were over sensitive'.[174] Soon after this, Einfeld J moved away from this position and the 'reasonable woman' test has not recurred in interpretations of Australian sexual harassment definitions.[175]
The adoption of a reasonable woman standard in sexual harassment cases presents its own set of potential problems, as the views of Einfeld J attest. A reasonable woman standard may present a unitary view of womanhood in which the multidimensional character of women's individual identity is erased.[176] This has the potential to disadvantage complainants by encouraging dangerous stereotypes about how women 'should' respond to unwelcome conduct of a sexual nature. This, in turn, may function to exclude complainants who fail to conform to such constructs. A reasonable woman standard may additionally engender the perception that women are receiving 'special treatment'.
Given these limitations that potentially arise with a reasonable woman test, MacDermott suggests that the reasonable person test be maintained and given effect by including fully the views of women on acceptable social conduct.[177] Indeed, two subtly different modes of dealing with the question of reasonableness are apparent in Australian legislative definitions of sexual harassment. The first, which includes that taken in the current Commonwealth SDA definition, views reasonableness from the perspective of the (reasonable) harasser in that it asks whether a reasonable person, having regard to all the circumstances, would have anticipated that the complainant would be offended, humiliated or intimidated.[178] The second approach, found in some state jurisdictions, asks whether it is reasonable, in all the circumstances, that the complainant should feel offended, humiliated or intimidated by the conduct.[179] Whilst in the first approach, the reasonableness attaches to the perpetrator, in the second it attaches to the complainant. For this reason it has been said that this second approach is closer to a reasonable woman test.[180]
To amount to sexual harassment under the SDA, the unwanted sexual behaviour must occur in circumstances in which a reasonable person would have anticipated that the person harassed would be 'offended, humiliated or intimidated'.[181] This element has attracted more attention than any other aspect of the current definition. Concerns have been voiced over whether the emotions of offence, humiliation or intimidation accurately encapsulate the reactions of women to unwelcome sexual conduct. Research indicates that the emotional responses of women who experience sexual harassment vary considerably. While feelings of humiliation and intimidation are not uncommon, women may be just as likely to experience anger, distress, fear, alienation, confusion, helplessness or guilt.[182] It may be that the limited framing of the definition leads those women whose emotional responses do not conform to this wording to question the validity of their complaint. Additionally, this element of the definition also implies that some degree of unwanted sexual conduct is acceptable, as behaviour is not unlawful unless it is reasonable to believe that it could evoke the described response.[183]
More specific criticism of this formulation of 'offended, humiliated or intimidated' centres upon the emphasis that this aspect of the definition places on matters of morality, at the expense of equality. In particular, the notion of 'offence' is said to resonate with the traditional liberal idea that sex should be confined to the private sphere[184] and that, this 'morality characterisation' may 'reprivatise a phenomenon only recently made public'.[185] In summoning the 'paternalistic protection of law', the notion of 'offence' may also allow for an 'easy elision between "being offended" and moral prudery, which could well undercut the force of the legislative amendments'.[186] On this point, Morgan considers the example of the United States case Rabidue v Osceola, which involved a complaint about a workplace that was adorned with posters of nude and semi-clad women and a supervisor who regularly used the words 'whore', 'cunt', 'pussy' and 'tits' when referring to women.[187] The court discussed modern America as imbued with 'open displays of written and pictorial erotica ... [including] pictures of naked bodies and erotic or simulated sex acts. Living in this milieu, the average American should not be legally offended by sexually explicit posters'.[188] Morgan, however, emphasises MacKinnon's point that the 'complainant did not claim that she was offended', but, rather, she claimed that she was 'discriminated against based on her sex'.[189] In other words, the complainant had been treated less favourably than a man. Such treatment is, ultimately, a matter of equality (not morality).[190]
Other commentators, however, have argued in favour of interpreting sexual harassment as a question of morality. Jeffrey Minson, for example, has suggested that it is helpful to understand sexual harassment as a breach of 'sexual etiquette' or 'good manners'.[191] Such a breach is analogous to 'inconsiderate behaviour' or 'gross impoliteness' that is commonly, although not exclusively, directed by men towards women. [192] For Minson, good manners in general provide us with a means of claiming personal space and are thus 'indispensable' in a 'democratic political culture'. In particular, correct conduct towards women in the workplace is a prerequisite for women's 'equal "industrial citizenship"'.[193] Whilst the importance of equal industrial citizenship for women is not in question, critics of this argument suggest that it trivialises unwanted sexual behaviour by classifying it as a social transgression[194]: 'if manners have a place at all in discussions of sexual harassment, it is only because they have been preceded by the language and understanding of equality claims.'[195] Bacchi and Jose point out that 'the kind of paternalism appealed to in references to "gentlemanly conduct" is the "flip-side" of the kind of attitude which produces sexual harassment.' They argue that '[y]ou cannot use one version of sexism to fend off another when they feed off each other.' [196] Thus Morgan warns that '[t]he purchase of an equality analysis is ... too precarious to abandon to a morality-inspired analysis and too important to relegate to merely one aspect of our understanding.'[197]
Significantly, the relationship between sexual harassment and citizenship has produced some interesting insights into possible reforms of sexual harassment legislation. In an attempt to displace the current emphasis on morality in Australian definitions, Morgan has suggested that a feminist 'equality-based understanding of sexual harassment' might be helpfully 'supplemented with closer ties to the rights of bodily autonomy related to citizenship.'[198] To make this argument she turns primarily to the work of United States legal theorist, Drucilla Cornell. Cornell argues that people are
degraded when they are reduced to stereotypes of their 'sex' or have imposed upon them objectified fantasies of their 'sex' so that they are viewed and treated as unworthy of equal citizenship. We are degraded ... when our 'sex' is defined, symbolised and treated as antithetical to equal personhood and citizenship.[199]
In this sense, the harm of sexual harassment is reconceptualised as 'an interference with the primary good of self-esteem or self-respect.'[200] This understanding has been the impetus for Cornell's formulation of a rather different definition of sexual harassment as consisting of:
a) unilaterally imposed sexual requirements in the context of unequal power, or
b) the creation and perpetuation of a work environment which enforces sexual shame by reducing individuals to projected stereotypes or objectified fantasises of their 'sex' so as to undermine the primary good of self-respect, or
c) employment-related retaliation against a subordinate employee or, in the case of a university, a student, for a consensually mutually desired sexual relationship.[201]
The appeal of this definition for Morgan lies in the way that it 'captures the 'offensiveness' of sexual harassment without the moral baggage.' It does this by evoking the 'fundamental requirements of citizenship or personhood, rather than the 'special treatment' of an interest group'—which is the way feminist claims on the state have usually been discounted.[202] Morgan is more reserved about the gender neutrality of Cornell's proposed definition. Whilst this approach rejects the assumption that women are inevitably disempowered victims who lack the agency to resist sexual harassment, it fails to recognise that sexual harassment is a harm overwhelmingly perpetrated by men against women. What we need, says Morgan, is a definition that recognises that sexual harassment is a deeply gendered behaviour but that does not ignore or silence experiences that cannot be encapsulated fully by gender or that embody a form of resistance in themselves. Such a definition needs to acknowledge, at its very foundation, that it is the question of equality, not morality, which lies at the core of sexual harassment. [203]
While it is unlikely that we shall see such radical shifts in sexual harassment legislation in Australia in the near future, some solace can be taken from the fact that, despite the moralistic tone of the current definition, tribunals and courts appear to have shown a certain equivocation in adhering to a moral theme. Had they been more definite that sexual harassment was a matter of morality, we might have expected to see this consistently reflected in the language of their adjudications. While such language is sometimes evident, it is notable that, at other times, the decisions evince 'a very sensitive understanding of equality issues in relation to sexual harassment.'[204]
Prior to the introduction of specific sex discrimination law in Australia, the avenues of civil redress available to women for unwelcome sexual conduct were minimal. They tended to be costly, limited in scope and comparatively ineffective. International developments in the fields of human rights and feminist jurisprudence prompted the Commonwealth Parliament to enact sex discrimination legislation in 1984. Whilst the decision of O'Callaghan v Loder,[205] in the same year, was ground-breaking in that it offered the first judicial recognition that sexual harassment was a form of sex discrimination, it was criticised for being too limited in scope to offer any real cause for celebration. Ironically, O'Callaghan v Loder[206] did prove helpful in illuminating a series of difficulties that rapidly became apparent in the original definition of sexual harassment introduced as part of the SDA in 1984. Whilst 1992 reforms to this definition removed some of its more objectionable aspects—such as the requirement that there be a detriment associated with the refusal of sexual advances—several elements have continued to prove controversial. Sustained commentary has centred on the lack of certainty that surrounds the notion of 'unwelcome conduct of a sexual nature', the restrictions imposed by the relational requirement, and the difficulties of determining an appropriate reasonableness test. Perhaps the strongest criticism has been reserved for the assumption that the harm of sexual harassment can be adequately encapsulated by emotions of offence, humiliation and intimidation. It is here that the undertones of liberal morality that continue to plague this definition, and to restrict its social utility, are said to be most apparent.
Seemingly, these debates suggest that the task of drafting the 'perfect' definition of sexual harassment is endless. Each new development appears to bring with it both progressive and regressive interpretations. The history of the Commonwealth SDA exemplifies these contradictions and ambiguities well. Here, legislative reforms have sought to overcome limitations in case law definitions, only to find that fresh problematic elements are introduced in the process. As further developments have been made to this definition—through both judicial and tribunal decision-making and legislative tinkering—it has become increasingly apparent that the nature, context and harm of sexual harassment continues to defy simplistic definition. Each time we attempt to improve and refine our legislative understanding of sexual harassment, we run the risk of trivialising or excluding experiences that do not fit the new model. Clearly, these difficulties do not provide an excuse to be satisfied with the status quo but they do invite us to take a modest view of what can be achieved through legislation.
[∗] Gail Mason, LLB, Dip Crim, MA, PhD, Faculty of Law, University of Sydney; Anna Chapman, B Com, LLB (Hons), LLM, Centre for Employment and Labour Relations Law, Law School, University of Melbourne. The authors would like to thank Helen Askew for providing extensive research assistance and issues papers for this comment. This research was funded by an ARC Grant.
[1] O'Callaghan v Loder [1984] EOC 92– 023.
[2] See Sex Discrimination Act 1984 (Cth) ('SDA') pt II div 3; Anti-Discrimination Act 1977 (NSW) ('ADA (NSW)') pt 2A; Equal Opportunity Act 1995 (Vic) ('EOA (Vic)') pt 5; Anti-Discrimination Act 1991 (Qld) ('ADA (Qld)') Chapter 3; Equal Opportunity Act 1984 (SA) ('EOA (SA)') s 87; Equal Opportunity Act 1984 (WA) ('EOA (WA)') pt II div 4; Anti-Discrimination Act 1998 (Tas) ('ADA (Tas)') s 17(2), (3); Discrimination Act 1991 (ACT) ('DA (ACT)') pt V; Anti-Discrimination Act 1992 (NT) ('ADA (NT') s 22.
[3] Harassment on specified grounds has been expressly prohibited under the following statutes: Disability Discrimination Act 1992 (Cth) pt 2; EOA (WA) pt III div 3A; ADA (NT) s 20(1)(b); ADA (Tas) s 17(1). Note that harassing behaviour has been recognised as a form of direct discrimination: Oyekanmi v National Forge Operations Pty Ltd [1996] EOC 92–797; Rugema v Gadsten Pty Ltd [1997] EOC 92–887 (the ground of race) and Daniels v Hunter Water Board [1994] EOC 92–626 (the ground of homosexuality). In addition, several jurisdictions also proscribe racial hatred and acts of vilification on a range of grounds. These provisions prohibit types of harassing behaviour. See eg, Racial Discrimination Act 1975 (Cth) pt IIA; ADA (NSW) pt 2 div 3A, pt 3A div 5, pt 4C div 4, pt 4F; Racial and Religious Tolerance Act 2001 (Vic).
[4] [1984] EOC 92–023.
[5] In recognition of the fact that the vast majority of sexual harassment complainants are women, this comment will use the pronoun 'she' to refer to complainants. The pronoun 'he' will be used, as appropriate, to refer to the alleged perpetrator, or respondent.
[6] There is some evidence of the existence of complaints about unwanted sexual conduct in Australian workplaces prior to the introduction of the Commonwealth sexual harassment statutory provisions. For example, Bacchi and Jose describe a formal complaint made in 1912 by an assistant schoolteacher in South Australia that the school inspector had 'insulted her gravely and indecently assaulted her'. The Education Department dismissed the inspector and this dismissal was subsequently upheld by a Board of Enquiry: Carol Bacchi and Jim Jose, 'Dealing with Sexual Harassment: Persuade, Discipline or Punish?' (1994) 10 Australian Journal of Law and Society 1, 2.
[7] The Equal Employment Opportunity Act of 1972 inserted Title VII into the Civil Rights Act of 1964.
[8] Bacchi and Jose, above n 6, note 1.
[9] See, eg Williams v Saxbe 413 F Supp 654 (DDC 1976); Barnes v Castle [1977] USCADC 282; 561 F.2d 983 (DC Cir 1977) and the other cases discussed in Catharine MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (1979), Appendix B.
[10] MacKinnon, above n 9.
[11] Ibid 26, citing several United States studies.
[12] Ibid 172.
[13] Jocelynne Scutt, 'In Pursuit of Equality: Women and Legal Thought 1788–1984' in Jacqueline Goodnow and Carole Pateman (eds) Women, Social Science and Public Policy (1985) 116, 122–4; Peter Bailey, Human Rights: Australia in an International Context (1990) 153.
[14] Bailey, above n 13, 152–153, discussing 'CEDAW' (below n 16).
[15] Opened for signature 25 June 1958, 362 UNTS 31 (entered into force 15 June 1960).
[16] Opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981).
[17] Bailey, above n 13, 152.
[18] Scutt, above n 13, 122–4. A committee in the Northern Territory was established later in 1979.
[19] National Committee on Discrimination in Employment and Occupation, Towards Equal Opportunity in Employment: First Annual Report 1973–4 (1975) 3.
[20] Scutt, above n 13, 122; National Committee on Discrimination in Employment and Occupation, above n 19, 2–3.
[21] The state committees dealt with complaints relating to the grounds specified in ILO Convention 111 (race, colour, sex, religion, political opinion, national extraction and social origin) in addition to other grounds: National Committee on Discrimination in Employment and Occupation, above n 19, 3.
[22] Tabling in the Commonwealth Parliament was at the discretion of the relevant Minister: National Committee on Discrimination in Employment and Occupation, Second Annual Report 1974–75 (1976) 4. Senator Susan Ryan expressed the view that this mechanism for tabling was in practice useless as it had, to her knowledge, never been used: Commonwealth, Parliamentary Debates, Senate, 11 June 1981, 3043 (Susan Ryan).
[23] Simon Balderstone, 'Sex Made a Ground of Complaint', The Age (Melbourne), 21 March 1981, 1.
[24] National Committee on Discrimination in Employment and Occupation, Tenth Annual Report 1982–83 (1983) 47.
[25] Ibid.
[26] Sex Discrimination Act 1975 (SA).
[27] ADA (NSW); Equal Opportunity Act 1977 (Vic).
[28] Commissioner for Equal Opportunity (Victoria), Second Annual Report 1978–1979 (1979) 17–18.
[29] Ibid 17.
[30] Ibid.
[31] Commissioner for Equal Opportunity (Victoria), Third Annual Report 1979–1980 (1980) 53. The Equal Opportunity Bulletin was dated October 1980. It stated that its purpose was to assist employers to identify and counteract the problem of sexual harassment more readily.
[32] Ibid.
[33] Ibid.
[34] Ibid 54.
[35] Ibid.
[36] Commissioner for Equal Opportunity (Victoria), Fifth Annual Report 1981–1982 (1982) 14–18.
[37] Ibid 17.
[38] Anti-Discrimination Board (NSW), Report for the Year Ended 30 June 1980 (1980) 15. See also Linda Rubinstein, 'Dominance Eroticised: Sexual Harassment of Working Women' in Margaret Bevege, Margaret James and Carmel Shute (eds), Worth Her Salt: Women at Work in Australia (1982) 163, 171.
[39] Anti-Discrimination Board (NSW), above n 38, 15.
[40] Ibid.
[41] Ibid 79–80.
[42] Ibid 79.
[43] The policy is contained in Anti-Discrimination Board (NSW), Fourth Annual Report (1981) 81–83.
[44] Ibid 83.
[45] Susan Tiffin, 'Against the Odds: Fighting Sexual Harassment Under Anti-Discrimination Legislation' (1984) 27 Refractory Girl 7, 12 n 3; Rubinstein, above n 38, 165.
[46] See, eg, Tiffin, above n 45, 12 note 3; Rubinstein, above n 38, 165–6.
[47] [1984] EOC 92–022, 92–023, 92–024.
[48] O'Callaghan's complaint read as follows: 'I wish to make a complaint of discrimination based on sex which is against the Anti-Discrimination Act. I am employed as a lift attendant at the Department of Main Roads and I have been sexually harassed by the Commissioner, Mr Loder.' See O'Callaghan v Loder [1984] EOC 92–023, 75, 496.
[49] O'Callaghan v Loder [1984] EOC 92–024, 75, 510.
[50] O'Callaghan v Loder [1984] EOC 92–022. See Tiffin, above n 45, 8–9.
[51] O'Callaghan v Loder [1984] EOC 92–024, 75, 513.
[52] Margaret Thornton, 'The Legitimation of Sexual Harassment' (1984) 18 Scarlet Woman 2, 3. The incident is also noted by Tiffin, above n 45, 9, 10 and Scutt, above n 13, 128. Notably, the details of the incident are not referred to in the decision of the Equal Opportunity Tribunal: O'Callaghan v Loder [1984] EOC 92–024, 75, 515.
[53] O'Callaghan v Loder [1984] EOC 92–024, 75, 513.
[54] Ibid 75, 515.
[55] Ibid.
[56] See, eg, Irene Moss and Margaret Newton, 'The Anti-Discrimination Board of New South Wales: Eight Years of Achievement in a New Area of Law' (1986) 60 Australian Law Journal 162, 166; Anne Riches, 'Discrimination and Sexual Harassment: Recent Developments' (1983) Australian Current Law 36063, 3065. Scutt was more ambivalent about whether the decision was a breakthrough: Scutt, above n 13, 126. See also Tiffin, above n 45, 11; O'Callaghan v Loder [1984] EOC 92–024, 75, 517.
[57] The relevant provisions in the statute at that time were ss 24 and 25 of the Anti-Discrimination Act 1977 (NSW). Determinations in other jurisdictions subsequently confirmed the view of Mathews J that sexual harassment constitutes sex discrimination: R v Equal Opportunity Board; Ex parte Burns [1985] VicRp 31; [1985] VR 317; Lyon v Godley [1990] EOC 92–287.
[58] O'Callaghan v Loder [1984] EOC 92–023, 75, 497.
[59] Ibid 75, 505. The tribunal described this idea as being similar to the developments in United States cases 'where the pattern of sexual harassment inflicted on the employee resulted in his or her being subjected to a hostile or demeaning work environment'. According to the tribunal, in such situations, either the unwelcome sexual conduct, or the hostile atmosphere created by it, can become such a feature of the employment that it can constitute a term or condition of it: ibid.
[60] Ibid 75, 506. In addition, according to Mathews J, sexual harassment accompanied by the threat of adverse employment consequences, or deprivation of job opportunities, are sufficient to constitute unlawful sex discrimination: ibid 75, 506–75, 507. Jenny Morgan credits the tribunal with recognising two broadly identified forms of sexual harassment: quid pro quo harassment (sexual proposition accompanied by employment threat) and hostile work environment harassment (where a sexually hostile environment becomes a term or condition of employment): Jenny Morgan, 'Sexual Harassment: Where Did it Go in 1995?' in Jenna Mead (ed), Bodyjamming: Sexual Harassment, Feminism and Public Life (1997) 101, 105.
[61] O'Callaghan v Loder [1984] EOC 92–023, 75, 506.
[62] Ibid 75, 505.
[63] Ibid 75, 507.
[64] Ibid 75, 506.
[65] O'Callaghan v Loder (1984) EOC 92–024, 75, 514.
[66] Ibid 75, 514.
[67] Ibid 75, 516.
[68] Thornton, above n 52, 3.
[69] Ibid. See also Regina Graycar and Jenny Morgan, The Hidden Gender of Law (1990) 361. In her seminal work MacKinnon above n 9, 47–55 describes the range of responses that women report experiencing as a result of sexual harassment in their workplace. These include feelings of humiliation, degradation, alienation, guilt, a sense of hopelessness and emotional exhaustion,.
[70] Scutt, above n 13, 128. Scutt interpreted the tribunal's finding in O'Callaghan on the requirement of unwelcomeness as introducing a criminal standard of proof (beyond reasonable doubt) into the civil arena of anti-discrimination law. Scutt wrote that in effect 'the onus apparently placed upon the complainant is that of objecting so strongly to the activity that the respondent is in no doubt that his attentions are unwanted (and the judgment seems even to exclude recklessness on his part)': at 127. Ian Barker makes a similar point that the concepts of knowledge and intention are more appropriately part of the criminal law, and not anti-discrimination jurisdictions: Ian Barker, 'Discrimination: Some Legal Issues' (1985) 51 Canberra Bulletin of Public Administration 51, 55.
[71] Scutt, above n 13, 128.
[72] Ibid.
[73] Helen Mills, 'Sexual Harassment as Sex Discrimination' (1984) 9 Legal Services Bulletin 5, 6–7. Barker questions why the knowledge of the alleged harasser is of any relevance to a claim of sex discrimination: Barker, above n 70, 55.
[74] Mills, above n 73, 6.
[75] Thornton, above n 52, 3.
[76] Scutt, above n 13, 129. Interestingly, Justice Marcus Einfeld (then President of the Human Rights and Equal Opportunity Commission and Justice of the Federal Court of Australia) developed a similar argument a few years later to the effect that the Sex Discrimination Act 1984 (Cth) ought to be amended to deem proved sexual conduct to be unlawful unless the evidence satisfies the tribunal to the contrary: Justice Marcus Einfeld, 'Sexual Harassment' (1988–89) 21 Australian Journal of Forensic Sciences 43, 56.
[77] O'Callaghan v Loder [1984] EOC 92–023, 75, 497.
[78] Tiffin, above n 45, 9–10. Scutt above n 13, 128 also construed power and gender in this way.
[79] Jenny Morgan, 'Sexual Harassment and the Public/Private Dichotomy' in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) 89, 101–2.
[80] SDA s 28(3)(a), (b) (subsequently repealed).
[81] SDA s 28(1)(b) (subsequently repealed).
[82] NSW Anti-Discrimination Board, Seventh Annual Report: 1983–1984 (1984) 92.
[83] Thornton, above n 52, 4.
[84] Sex Discrimination Bill 1981 (Cth). This Bill followed Australia becoming a signatory to CEDAW in 1980. See Commonwealth, Parliamentary Debates, Senate, 26 November 1981, 2714 (Susan Ryan) (second reading speech).
[85] Sex Discrimination Bill 1983 (Cth).
[86] Thornton notes that the legislation was being drafted at the time when O'Callaghan was handed down: Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) 59.
[87] The parliamentary debate relating to the SDA was (at 1996) the longest recorded in federal parliament: Virginia Triolli, Generation f: Sex Power and the Young Feminist (1996) 78.
[88] Thornton, 'Anti-Discrimination Legislation in Australia' above n 86, 59.
[89] Commonwealth, Parliamentary Debates, Senate, 2 June 1983, 1187 (Susan Ryan) (second reading speech).
[90] Graycar and Morgan, above n 69, 357–8.
[91] SDA s 28(3) (subsequently amended). The words 'conduct of a sexual nature' included making, to, or in the presence of, a person, a statement of a sexual nature concerning that person, whether the statement was made orally or in writing: SDA s 28(4).
[92] SDA s 28(3)(a), (b) (subsequently repealed).
[93] SDA s 28(1), (2) (subsequently repealed).
[94] SDA s 106. These provisions have encouraged employers to proactively address the issue of sexual harassment through developing their own policies to deal with the problem. See further, Christine Parker, 'Public Rights in Private Government: Corporate Compliance with Sexual Harassment Legislation' [1999] AUJlHRights 7; (1999) 5 Australian Journal of Human Rights 159.
[95] SDA s 29 (subsequently repealed). This covered harassment by staff members of students and prospective students. It did not, however, cover harassment perpetrated by students against other students or staff members.
[96] SDA s 28(3) (subsequently repealed). See further, Einfeld, above n 76, 51.
[97] Justice Einfeld in Bennett v Everitt [1988] EOC 92–244, 77, 278 drew on the following dictionary meanings of harass: the Shorter Oxford Dictionary defined 'harass' as 'to trouble or vex by repeated attacks' and the Macquarie Dictionary defined harass as 'to disturb persistently; to torment'.
[98] Hall v Sheiban [1988] EOC 92–227, 77, 146–77, 147. For further discussion of this decision and the subsequent decision in this case, see Jenny Morgan, 'Sexual Harassment: One Man's View' (1988) 13 Legal Service Bulletin 157 and Jenny Morgan, 'Pre-employment Interviews, Sexual Harassment and Discrimination' (1989) 2 Australian Journal of Labour Law 276.
[99] Gabriel Moens expressed concern that the potential under the SDA for a single act to constitute sexual harassment disregarded the need for an intention to harass, which he thought 'removed an important yardstick by which to measure the validity' of a complaint. He believed it necessary to examine intention in order to measure the compatibility of the conduct with, what he described as, ' the nature of male sexuality': Gabriel Moens, 'Sexual Harassment and the Sex Discrimination Act 1984' (1990) 6 Policy 25, 27.
[100] Morgan, 'Sexual Harassment: One Man's View', above n 98, 158.
[101] Ibid 158–159.
[102] Hall v A & A Sheiban Pty Ltd [1989] EOC 92–250, 77, 389 (Lockhart J), 77, 402 (Wilcox J), 77, 430 (French J). In a subsequent decision Einfeld J moved away from his earlier understanding of the need for repetition: Bennett v Everitt [1988] EOC 92–244, 77, 278. See also Einfeld, above n 76, 51.
[103] Hall v A & A Sheiban Pty Ltd [1989] EOC 92–250, 77, 389 (Lockhart J).
[104] SDA s 28(3)(a) and (b) (subsequently repealed). On this shift in perspective from the harasser to the complainant, see Graycar and Morgan, above n 69, 362; Morgan, 'Sexual Harassment and the Public/Private Dichotomy, above n 79, 92; Mills, above n 73, 8. This shift in perspective is a feature of the SDA that Moens finds troubling: Moens, above n 99, 27.
[105] Lauren Fahey, Law and Feminism: Focusing on Sexual Harassment (MA Minor Thesis, University of Melbourne, 1994) 36–37; Mills, above n 73, 7–8.
[106] Mills, above n 73, 7–8.
[107] Hall v Sheiban [1988] EOC 92–227, 77, 135, 77, 148.
[108] Hall v A & A Sheiban Pty Ltd [1989] EOC 92–250, 77, 406 (Wilcox J). See also Morgan, 'Pre-employment Interviews, Sexual Harassment and Discrimination', above n 98, 279.
[109] Graycar and Morgan, above n 69, 353. Like the terminology of 'quid pro quo' sexual harassment—which refers to situations where employment (ie, promotion or security) is made contingent upon the acceptance of unwanted sexual conduct—'hostile work environment' sexual harassment has its origins in the United States. Both forms of sexual harassment have now been successfully litigated in Australia: Regina Graycar and Jenny Morgan, The Hidden Gender of Law (2nd edn, 2002) 390.
[110] Morgan, 'Sexual Harassment: Where Did it Go in 1995?', above n 60, 106; Chris Ronalds, Discrimination Law and Practice (1998) 74.
[111] Freestone v Kozma [1989] EOC 92–249, 77, 377; G v R and Department of Health Housing and Community Services (Unreported, HREOC, 17 September 1993). However the position remains unclear—see the discussion below under the subheading in Part II, 'ii) In Relation To'.
[112] The Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) amended the SDA. See n 120 below.
[113] House of Representatives Standing Committee on Legal and Constitutional Affairs, Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (1992).
[114] Hilary Astor, 'Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia' (1993) 6 Australian Journal of Labour Law 74.
[115] House of Representatives Standing Committee on Legal and Constitutional Affairs, above n 113, 262 (Recommendation 65).
[116] Ibid.
[117] Ibid.
[118] Ibid.
[119] Discrimination Act 1991 (ACT) s 58: '[A] person subjects another person to sexual harassment if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person or engages in other unwelcome conduct of a sexual nature in circumstances in which the other person reasonably feels offended, humiliated or intimidated.'
[120] The Hon Paul Keating, Prime Minister, and the Hon Wendy Fatin, Minister for the Arts and Territories and Minister Assisting the Prime Minister for the Status of Women, Government Response to Half Way to Equal—the Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia by the House of Representatives Standing Committee on Legal and Constitutional Affairs (1992) 107. The Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) repealed the existing s 28 and replaced it with a new s 28A. In addition, ss 28B to 28L were inserted into the SDA to expand the field of operation of the sexual harassment proscription to include, ie, sexual harassment of staff by students, sexual harassment of one partner by another and sexual harassment of one workplace participant by another, whether or not they shared the same employer. See, further, Therese MacDermott, 'Amendments to the Sex Discrimination Act 1984 (Cth)' (1994) 7 Australian Journal of Labour Law 95.
[121] Compare the previous SDA s 28(3)(a) and (b) with the current s 28A(1)(a) and (b). Some state jurisdictions retain a requirement for some other work-related disadvantage, or a reasonable belief of disadvantage, in addition to the unwelcome sexual conduct: EOA (WA) s 24(3). See, further, MacDermott, 'Amendments to the Sex Discrimination Act 1984 (Cth)', above n 120, 95–96.
[122] Meredith Osborne, Sexual Harassment—A Code of Practice (1996) 24 (Human Rights and Equal Opportunity Commission). The purpose of this code is to provide practical guidance on the obligations contained in the SDA. Although the code is not legally binding as such, it does contain a distillation of many established principles on sexual harassment. It is likely that an employer whose actions fell below the level set out in the code would be found to be in contravention of the SDA: Ronalds, above n 110, 75.
[123] O'Callaghan v Loder [1984] EOC 92–022, 92–023, 92–024.
[124] The Human Rights and Equal Opportunity Commission Code summarises the current (at 1996) case law understanding of the requirement of knowledge by the perpetrator:
A complaint ... should not be dismissed just because the complainant did not tell the harasser that their behaviour was unwelcome. The case law takes into account the reasons why someone may feel unable to confront a harasser directly. Factors which might be relevant include the youth and inexperience of the complainant, fear of reprisals and the nature of the power relationship between the parties. However, even if the complainant didn't say anything to the harasser there still needs to be some indication from their reaction or the surrounding circumstances that the conduct was unwelcome.
Osborne, above n 122, 25-6. For a discussion of the kinds of factors that may be taken into account by tribunals in determining unwelcomeness, see Patricia Easteal, 'A Kaleidoscope View of Law and Culture: The Australian Sex Discrimination Act 1984' (2001) 29 International Journal of the Sociology of Law 51.
[125] The previous inclusive definition of 'conduct of a sexual nature' referred to a statement of a sexual nature 'concerning' the person to whom it was said, or in whose presence it was said. The amended definition does not refer to the statement being about the person to whom it was said, or in whose presence it was said. It merely refers to a statement of a sexual nature. Compare the previous SDA s 28(4) with the current s 28A(2). This alteration in wording has relevance to the issue of sexual harassment in the form of a hostile work environment, discussed below under subheading Part II, (ii).
[126] Attempts at a closer (inclusive) articulation date back to O'Callaghan v Loder [1984] EOC 92–023, 75, 505. More recently, see Osborne, above n 122, 35-8 (as part of the recommended sexual harassment policy check list). Interestingly, the ADA (Qld) s 119 includes a list of examples of sexual harassment.
[127] See, Osborne, above n 122, 26. An example is provided in the case of Djokic v Sinclair [1994] EOC 92–643. Although in this case, the Human Rights and Equal Opportunity Commission was not satisfied that deliberate touching in a sexual manner had occurred, it did find that the perpetrator's 'general demeanour towards the complainant over a sustained period reflected a hostility based on her sex that was oppressive to her and constituted sexual harassment.' By contrast, see Hall, Oliver and Reid v Sheiban [1988] EOC 92–227: at 77, 419 77, 146 (where the respondent's conduct was found to lack the element of 'true sexuality'). This decision was overturned on appeal: Hall v A & A Sheiban Pty Ltd [1989] EOC 92–250.
[128] Margaret Thornton, 'Feminism and the Contradictions of Law Reform' (1991) 19 International Journal of the Sociology of Law 453, 466. Indeed Thornton argues that all women in the paid workforce are subjected to some degree of harassment on account of their sex. See also Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (1996) 262.
[129] Hall v Sheiban [1988] EOC 92–227.
[130] Hall v Sheiban [1988] EOC 92–227, 77, 149–77, 151. See also Morgan, 'Sexual Harassment: One Man's View', above n 98, 159–160; Morgan, 'Pre-employment Interviews, Sexual Harassment and Discrimination', above n 98, 276, 280. Note that the decision of the Human Rights and Equal Opportunity Commission was overturned on appeal: Hall v A & A Sheiban Pty Ltd [1989] EOC 92–250.
[131] See Thornton, 'Feminism and the Contradictions of Law Reform', above n 128, 465. Frances Olsen attributes the comparative success of sexual harassment claims to an unconscious invocation of the public/private distinction: Frances Olsen, 'The Family and the Market: A Study of Ideology and Legal Reform' (1983) 96 Harvard Law Review 1497, 1551 n 207.
[132] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 97.
[133] Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia, above n 86, 59.
[134] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 97.
[135] On its face, the definition of sexual harassment in the ADA (Qld) covers sexual harassment in all areas of life, including on the street. Section 118 of the ADA (Qld) states simply that '[a] person must not sexually harass another person'. With no restrictions on areas or relationships covered, this law has the potential to render unlawful sexual harassment that occurs anywhere from the home to public spaces, even when the harasser is a stranger to the complainant. Morgan has expressed the view that the gender neutrality of the Queensland provision, compounded by its failure to be explicit about the increased parameters of protection, 'may well lead to the legislation being little used in practice for this kind of harm': Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 99–100. Indeed, at June 2001, it appeared that no complaints had gone to a public hearing outside the areas of employment, accommodation and education.
[136] Thornton, 'Feminism and the Contradictions of Law Reform', above n 128, 464–65. See also, Margaret Thornton, 'The Public/Private Dichotomy: Gendered and Discriminatory', (1991) 18 Journal of Law and Society 448.
[137] Jan Crosthwaite and Graham Priest, 'The Definition of Sexual Harassment' (1996) 74 Australasian Journal of Philosophy 66, 70 (emphases in the original).
[138] Crosthwaite and Priest discuss some paradigm examples of sexual harassment as: 1) The use of a position of power to secure sexual access; 2) Where sexual access is sought without institutional power, by for example a co-worker or a fellow student; 3) Where an harasser forces an awareness onto the complainant of his presence and her vulnerability to his sexual appraisal (ie, leering and wolf whistles); and, 4) Telling 'dirty' jokes or displaying sexually explicit posters—where there may be no intention on part of the harasser to have any effect on the complainant: ibid 67–9.
[139] MacKinnon, above n 9.
[140] Crosthwaite and Priest, above n 137, 72.
[141] Iddo Landau, 'On the Definition of Sexual Harassment' (1999) 77 Australasian Journal of Philosophy 216, 216–17, 220. Some forms of male to male harassment would fall within the definition of sexual harassment put forward by Crosthwaite and Priest, above n 137, 76–9.
[142] Landau, above n 141, 217.
[143] Crosthwaite and Priest, above n 137, 70.
[144] [1985] EOC 92–127.
[145] Ibid 76,280, 76,282, 76,289. Women have been particularly vulnerable to hostile working environments when they work in non-traditional, male dominated. workplaces. See Therese MacDermott, 'The Duty to Provide a Harassment-Free Work Environment' (1995) 37 Journal of Industrial Relations 495, 496; Osborne, above n 122, 29.
[146] Hill v Water Resources Commission [1985] EOC 92–127, 76,282–76,285. In addition, Hill's authority when acting in a supervisory position was continuously undermined. Her supervisees were encouraged by a senior manager to bypass her with their requests for days off on flexitime leave: 76,290. In addition, Hill was later demoted by the respondent and moved into the respondent's equal employment opportunity section. The tribunal found that this change in responsibilities constituted unlawful sex discrimination: at 76, 286–7.
[147] Ibid 76,283.
[148] Ibid 76,290.
[149] Of course at this time Hill's complaint could only be argued as direct sex discrimination. There were no separate statutory provisions relating to sexual harassment at this time, either federally or under the ADA (NSW), which is the statute under which Hill brought her complaint.
[150] Hill v Water Resources Commission [1985] EOC 92–127, 76, 280, 76, 284, 76, 290.
[151] Horne v Press Clough Joint Venture [1994] EOC 92–591.
[152] Ibid. The case was argued, and decided, under the sex discrimination provisions in the EOA (WA). The sexual harassment provisions in the EOA (WA), like the original SDA definition of sexual harassment, require a complainant to show either some additional work-related detriment, or a reasonable belief of such detriment. See s 24(3) EOA (WA). It may have been difficult for the complainants in this case to establish this additional aspect.
[153] Ibid 77, 175.
[154] Djokic v Sinclair [1994] EOC 92–643.
[155] Ibid 77, 419. In addition to sexual harassment, Djokic complained of sex and race discrimination.
[156] ADA (Tas) s 17 lists a number of attributes (gender, marital status, pregnancy, breastfeeding, parental status and family responsibilities) on which it is unlawful to harass a person. See generally, Anna Chapman, 'Anti-Discrimination Act 1998 (Tas)' (2000) 13 Australian Journal of Labour Law 183, 188.
[157] MacDermott, 'The Duty to Provide a Harassment-free Work Environment', above n 145, 499. This issue overlaps to some extent with the material discussed below under the heading of 'In Relation To'.
[158] O'Callaghan v Loder [1984] EOC 92–023. See also Bennett v Everitt [1988] EOC 92–244; Bebbington v Dove [1993] EOC 92–543; Freestone v Kozma [1989] EOC 92–249; Hall v Sheiban [1989] EOC 92–250.
[159] SDA (Cth) s 28A(1)(a), (b).
[160] A v B [1991] EOC 92–367.
[161] Ibid 78,532.
[162] MacDermott, 'The Duty to Provide a Harassment-free Work Environment', above n 145, 499. Similarly, sex discrimination provisions might be preferred where the conduct may not satisfy the reasonable person test (discussed below) of sexual harassment: at 499–500.
[163] Additionally, depending on the jurisdiction, a person may lodge a complaint under some other ground such as race, disability or sexuality if the complainant believes that this other ground has also shaped the behaviour of the perpetrator.
[164] Morgan, 'Sexual Harassment and the Public/Public Dichotomy', above n 79, 92.
[165] SDA (Cth) s 28(3)(a) (subsequently repealed).
[166] SDA (Cth) s 28A(1).
[167] MacDermott, 'Amendments to the Sex Discrimination Act 1984 (Cth)', above n 120, 96; Graycar and Morgan, above n 69, 371. Over 80% of complaints under the sexual harassment provisions appear to be made by women: see, ie, Anti-Discrimination Board (NSW), Annual Report 1999–2000 (2000) 24; Equal Opportunity Commission (Victoria), The Way Forward: Annual Report 2000/2001 (2001) 29; Human Rights and Equal Opportunity Commission, Annual Report 1999–2000 (2000) <http://www.hreoc.gov.au/ ?annrep_99_00/index.html> at 14 March 2003.
[168] MacKinnon unmasks law's neutrality, or point-of-viewlessness, to reveal a male standard. In her words, '[M]ale dominance is perhaps the most pervasive and tenacious system of power in history, ... it is metaphysically nearly perfect. Its point of view is the standard for point-of-viewlessness, its particularity the meaning of universality.' Catharine MacKinnon, 'Feminism, Marxism, Method and the State: Towards Feminist Jurisprudence' (1983) 8 Signs: Journal of Women in Culture and Society 635, 638–9. See further, Ngaire Naffine and Rosemary J Owens (eds), Sexing the Subject of Law (1997) pts 1 and 2.
[169] See, for example, Leslie M Kerns, 'A Feminist Perspective: Why Feminists Should Give the Reasonable Woman Standard Another Chance' (2001) 10 Columbia Journal of Gender and Law 195; Caroline Forell and Donna Matthews, A Law of Her Own: The Reasonable Woman as a Measure of Man, (2000); Caroline Forell, 'Essentialism, Empathy and The Reasonable Woman' [1994] University of Illinois Law Review 769; Jeffrey A Gettle, 'Sexual Harassment and the Reasonable Woman Standard: Is it a Viable Solution?'(1993) 31 Duquesne Law Review 841; Caroline Forell, 'Reasonable Woman Standard of Care' [1992] UTasLawRw 1; (1992) 11 University of Tasmania Law Review 1.
[170] Forell and Matthews, above n 169, xvii–xxii.
[171] Rabidue v Osceola Refining Co, [1986] USCA6 1911; 805 F 2d 611 (6th Cir 1986) per Keith J dissenting; Robinson v Jacksonville Shipyards Inc 760 F Supp 1486 (MD Fla 1991), discussed in Forell (1992), above n 169, 8–12. Interestingly, in his comparative study on sexual harassment law, Robert Husbands claims that most countries that include a reasonableness test in their law have adopted a 'reasonable woman' standard: Robert Husbands, 'Sexual Harassment Law in Employment: An International Perspective' (1992) 131 International Labour Review 535, 542.
[172] Hall v Sheiban [1988] EOC 92–227, on appeal Hall v A & A Sheiban Pty Ltd [1989] EOC 92–250. On the outcry that accompanied the decision of Einfeld J, see Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia, above n 86, 60, Morgan 'Sexual Harassment: One Man's View', above n 98; Morgan, 'Pre-employment Interviews, Sexual Harassment and Discrimination', above n 98.
[173] Forell suggests that most male judges would be capable of empathising with how women feel. Forell, 'Reasonable Woman Standard of Care', above n 169, 15.
[174] Morgan, 'Sexual Harassment: One Man's View', above n 98, 159. In the passage from which the quote is taken, Morgan drew on MacKinnon's work (Catherine MacKinnon, Feminism Unmodified (1987)).
[175] See, Bennet v Everitt [1998] EOC 92–244.
[176] On the limitations of a reasonable woman test, see, Stephanie M Wildman, 'Ending Male Privilege: Beyond the Reasonable Woman' (2000) 98 Michigan Law Review 1797 (a review essay on Forell and Matthews, above n 169); Kathryn Abrams, 'The New Jurisprudence of Sexual Harassment' (1998) 83 Cornell Law Review 1169; Kathryn Abrams, 'The Reasonable Woman: Sense and Sensibility in Sexual Harassment Law' [1995] Dissent 48; Sharon J Bittner, 'The Reasonable Woman Standard After Harris v Forklift Systems, Inc: The Debate Rages On' (1994) 16 Women's Rights Law Reporter 127; Naomi R Cahn, 'The Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice' (1992) 77 Cornell Law Review 1398; Nancy S Ehrenreich, 'Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law' (1990) 99 Yale Law Journal 1177; Lucinda Finley, 'A Break in the Silence: Including Women's Issues in a Torts Course' (1989) 1 Yale Journal of Law and Feminism 41.
[177] MacDermott, 'Amendments to the Sex Discrimination Act 1983 (Cth)', above n 120, 96.
[178] This approach is also apparent in the EOA (Vic) s 85(1); ADA (NSW) s 22A; ADA (Qld) s 119; ADA (Tas) s 17(3).
[179] See EOA (SA) s 87(11); DA (ACT) s 58(1). See Tripp v Freeman [1998] SADC 3746 (7 January 1998) (on the EOA (SA)); Re Marshall and Discrimination Commissioner (1998) 52 ALD 361 (under the DA (ACT)).
[180] George Raitt, 'Prevention Better Than Cure: Resolving Sexual Harassment Conflict' (1999) 73 Law Institute Journal 72, 74.
[181] SDA s 28A(1). Interestingly, and in contrast, the ADA (Tas) s 17(3) adds 'insult' and 'ridicule' to the list of emotions that may be considered in that state's definition of sexual harassment. On this Tasmanian provision, see further, Chapman, above n 156.
[182] See, ie, MacKinnon, Sexual Harassment of Working Women, above n 9, 47–55 which was relied on in the Federal Court decision of Hall v A & A Sheiban [1989] EOC 92–250, 77, 398, (Lockhart J); Commissioner for Equal Opportunity (Victoria), above n 36, 17.
[183] Phillip Tahmindjis, 'The New Queensland Anti-Discrimination Act: An Outline' (1992) 22 Queensland Law Society Journal 7, 16 (commenting on the ADA (Qld) test that a reasonable person would have anticipated that the complainant would be offended, humiliated or intimidated).
[184] Olsen, above n 131, 1551.
[185] Margaret Thornton, 'Preface', in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) xvi.
[186] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 92.
[187] Rabidue v Osceola 584 F Supp 419, 423 (District Court, Michigan 1984); Rabidue v Osceola [1986] USCA6 1911; 805 F. 2d 611 (6th Cir 1986), cited in Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 93.
[188] Rabidue v Osceola 584 F Supp 419, 433 (District Court, Michigan) 1984, emphasis in the original, cited in Morgan, 'Sexual Harassment and the Public/Private Dichotomy' above n 79, 93.
[189] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 93, citing MacKinnon, Sexual Harassment of Working Women above n 9, 115.
[190] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 93.
[191] Jeffrey Minson, 'Second Principles of Social Justice' (1992) 10 Law in Context 1, 12, 1 (respectively).
[192] Ibid 12–13. In this category Minson includes standing too close, staring at strangers and inappropriate familiarity: at 13.
[193] Ibid 13. Minson argues that anti-discrimination law could be strengthened by adopting the language of private torts, particularly as a wrong to address 'bodily integrity': at 16–17.
[194] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 108 claims that Minson's formulation appears to transform sexual harassment into 'a matter of lack of consideration or politeness.'.
[195] Ibid 109.
[196] Bacchi and Jose, above n 6, 11.
[197] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 110.
[198] Morgan, 'Sexual Harassment: Where Did it Go in 1995?', above n 60, 111. It is interesting to note that Morgan's emphasis on citizenship and bodily autonomy has parallels with Minson's emphasis on citizenship and bodily integrity.
[199] Drucilla Cornell, The Imaginary Domain: Abortion, Pornography and Sexual Harassment (1995) 10 (emphasis in the original) cited in Morgan, above n 58, 112.
[200] Morgan, 'Sexual Harassment: Where Did it Go in 1995?', above n 60, 112 (emphasis in original). The words 'self-esteem' and 'self-respect' are used by Cornell, above n 199, 8–9.
[201] Cornell, above n 192, 170 cited in Morgan, 'Sexual Harassment: Where Did it Go in 1995?', above n 60, 113 (emphasis in Morgan).
[202] Morgan, 'Sexual Harassment: Where Did it Go in 1995?', above n 60, 113 (emphasis in the original).
[203] Ibid 113–5.
[204] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 94. An example of such sensitivity provided by Morgan is the decision of Spender J in Aldridge v Booth [1988] EOC 92–222, 77, 095: at 95.
[205] [1984] EOC 92–023.
[206] Ibid.
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