Scenario: A woman who worked as a spare parts interpreter, brought complaints under the federal Sex Discrimination Act 1984 claiming that she was sexually harassed and discriminated against on the grounds of her sex, pregnancy and race at work. She alleged that her co-workers made sexually explicit remarks and remarks about pregnancy, and subjected her to racial harassment.
The company denied the allegations. They conceded that there had been 'horseplay' in the workplace, but claimed that the worker had been a willing participant in and instigator of this activity. They also conceded that there had been conduct of a sexual nature, but claimed that this was not unwelcome.
The company argued that the worker had brought her case because she had been made redundant and was not bona fide. They claimed that she had not followed the proper company procedures and had not complained of harassment during her employment.
The Magistrate found that co-workers had made sexually explicit comments, asked her to show her breasts, called her a 'stupid f---ing bitch' and called her a 'wog', a 'half caste' and a 'wog bitch'.
The Magistrate rejected the company's argument that as the worker had participated in, encouraged or initiated conduct of a sexual nature in the workplace, a reasonable person would not have anticipated that she would be offended, humiliated or intimidated by conduct in the same vein.
The Magistrate concluded that in this instance the conduct complained of went beyond bad language to include direct insults and highly personal remarks or actions. He stated that although the conduct of the applicant excluded some of her complaints, those that remained were actions of which any reasonable person was entitled to complain. 'I found that everyone was entitled to draw a line somewhere and those activities crossed that line,' he said.
The magistrate found that the worker had been sexually harassed and had been discriminated against on the basis of her sex and her race, and awarded her $12,500 in damages.
This case makes it clear that employers can be liable for conduct of a sexual nature that is unwelcome to the person, if a reasonable person would be offended, humiliated or intimidated by the conduct.
The fact that a person may have taken part in similar conduct does not mean that such conduct towards them will be welcome, and does not preclude a breach of the law on sexual harassment. It is therefore important for managers to ensure that conduct such as sexual banter is such that it would not offend, humiliate or intimidate reasonable people. Horman v Distribution Group, Federal Magistrates Court of Australia.
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