Work-related gendered violence including sexual harassment

Information for employers about preventing and responding to work-related gendered violence, including work-related sexual harassment.

What is work-related gendered violence?

Work-related gendered violence is any behaviour, directed at any person, or that affects a person, because of their sex, gender or sexual orientation, or because they do not adhere to socially prescribed gender roles, that creates a risk to health and safety.

This includes violence targeted directly at someone specifically because, for example:

  • they are a woman
    • they identify as LGBTIQA+
      • they don’t follow socially prescribed gender roles and stereotypes

        Work-related gendered violence can also be experienced indirectly. A person may experience gendered violence not targeted specifically at them (such as overhearing a conversation that affects them) or witness violence directed at someone else.

        LGBTIQA+: lesbian, gay, bisexual, transgender, intersex, queer or asexual

        Socially prescribed gender roles: society's traditional ideas about how men and women should look or act, what characteristics they should have, or their roles in the workplace, home or public life

        Types of work-related gendered violence can range in severity from comments and gestures, through to sexual assault and rape. It can include:

        • stalking, intimidation or threats
          • verbal abuse
            • ostracism or exclusion
              • sexually explicit gestures
                • offensive language and imagery
                  • put downs, innuendo, and insinuations
                    • being undermined in your role or position
                      • sexual harassment (see below)
                        • sexual assault or rape

                          What is sexual harassment?

                          As outlined in Section 92(1) of the Equal Opportunity Act 2010 (EO Act), a person sexually harasses another person if he or she:

                          1. makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
                          2. engages in any other unwelcome conduct of a sexual nature in relation to the other person in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

                          Work-related sexual harassment

                          Work-related sexual harassment is sexual harassment (as described above) directed at a person, that can happen at work, work related events, or between people sharing the same workplace. Work-related sexual harassment isn’t always obvious, repeated or continuous.

                          It can be a one-off incident and can involve unwanted or unwelcome:

                          • touching
                            • staring or leering
                              • suggestive comments or jokes
                                • sexually explicit pictures or posters
                                  • repeated invitations to go out on dates
                                    • requests for sex
                                      • intrusive questions about a person’s private life or body
                                        • unnecessary contact, such as deliberately brushing up against a person
                                          • insults or taunts based on sex or gender
                                            • sexually explicit physical contact
                                              • sexually explicit emails, text messages or social media activity

                                                Work-related gendered violence and the law

                                                Employers, employees and others have specific duties relating to work-related gendered violence (including work-related sexual harassment) under the Occupational Health and Safety Act 2004 and the Equal Opportunity Act 2010.

                                                Acts such as indecent exposure, stalking, sexual assault and obscene or threatening communications (for example phone calls, letters, emails, text messages and posts on social networking sites) may also be offences under criminal law. Victims may want to report criminal offences to the police.

                                                Occupational Health and Safety Act duties

                                                Employers

                                                Under the Occupational Health and Safety Act 2004 (OHS Act), employers must provide and maintain a work environment that is safe and without risk to the health of their employees, so far as is reasonably practicable. Employees include independent contractors and any employees of the independent contractor.

                                                Employers must eliminate risks to health and safety so far as is reasonably practicable. If it is not reasonably practicable to eliminate the risks they must be reduced so far as is reasonably practicable.

                                                Employers must provide and maintain safe systems of work, and give employees the necessary information, instruction, training or supervision to do their job safely and without risks to health.

                                                Employers must consult with health and safety representatives (HSRs) and their employees about health and safety issues that may directly affect them. Consultation about gendered violence must occur when:

                                                • identifying or assessing hazards or risks in the workplace
                                                  • making decisions about measures to be taken to prevent and manage gendered violence risks
                                                    • making decisions about procedures to resolve health or safety issues
                                                      • making decisions about procedures to monitor employee health
                                                        • making decisions about information and training on work-related gendered violence
                                                          • proposing changes that may affect the health and safety of employees

                                                            Employers must also ensure that, so far as is reasonably practicable, people other than employees are not exposed to risks to their health or safety arising from the business.

                                                            Sexual harassment is a common and known cause of physical and mental injury

                                                            Where there is a risk of work-related sexual harassment causing physical or mental injury employers have an obligation under the OHS Act to control that risk. This obligation is in addition to the obligation of employers under the EO Act.

                                                            Self-employed persons

                                                            Self-employed persons must ensure, so far as is reasonably practicable, that people are not exposed to risks to their health and safety arising from their conduct.

                                                            Those with management and control of a workplace

                                                            Those with management and control of a workplace must ensure, so far as is reasonably practicable, that the workplace is safe and without risks to health.

                                                            Employees

                                                            Employees must take reasonable care of their own health and safety in the workplace, and the health and safety of others who may be affected by what they do or don’t do. Employees must also cooperate with their employer on any action taken to comply with the OHS Act.

                                                            Equal Opportunity Act duties

                                                            Work-related gendered violence may constitute sexual harassment, unlawful discrimination or victimisation (treating someone adversely because they have made, or may make, a complaint) under the Equal Opportunity Act 2010 (EO Act).

                                                            Under the EO Act, employers have a duty not to engage in discrimination or sexual harassment, and to take reasonable steps to eliminate these behaviours.

                                                            An individual who discriminates against or sexually harasses another person in the workplace can be held responsible, and therefore legally liable, for their behaviour.

                                                            Employers can also be held legally responsible for acts of discrimination or sexual harassment by their employees or agents if they occur:

                                                            • in the workplace, or
                                                              • in connection with a person's employment

                                                                This is known as vicarious liability.

                                                                More information on dealing with discrimination or sexual harassment

                                                                Risks and effects of work-related gendered violence

                                                                People can be exposed to work-related gendered violence from managers, coworkers, contractors, site visitors, clients, customers or members of the public. Gendered violence can be perpetrated by anyone regardless of their sex, sexual orientation or gender identity. The evidence shows that men are more likely to commit gendered violence.

                                                                Work-related gendered violence may be aimed directly at an individual or a group. It could also be behaviour that while not directed at anyone, affects someone who is exposed to it, or witnesses it.

                                                                Examples of work-related gendered violence could include:

                                                                • A caller uses offensive sexual language with a female call centre operator.
                                                                • An employer questions or makes negative comments about an employee’s sexual orientation or the way they look.
                                                                • Pornographic posters on the wall in a warehouse make the female driver feel uncomfortable whenever she has to pick up a delivery.
                                                                • People make disparaging jokes about gay relationships in the staffroom, making a gay colleague at a neighbouring table feel threatened and excluded.
                                                                • A pub owner tells the female employees they have to wear short skirts to look sexy for the patrons.
                                                                • An employee receives unwanted sexually explicit texts from another employee after hours.
                                                                • A transgender woman overhears coworkers complaining about her using the women's toilets.
                                                                • A person is sexually assaulted by a client in a health care facility.

                                                                In some situations, work-related gendered violence and sexual harassment may overlap with work-related violence or work-related bullying. Complex workplace situations may include behaviours that are difficult to distinguish. The employer should consistently address work-related factors to help prevent and address these behaviours.

                                                                How it affects people

                                                                Work-related gendered violence varies in severity and its effect. It can contribute to physical injury and illness, as well as mental injury. It can lead to:

                                                                • feelings of isolation
                                                                  • loss of confidence and withdrawal
                                                                    • physical injuries as a result of assault
                                                                      • depression
                                                                        • anxiety
                                                                          • suicide
                                                                            • post-traumatic stress disorder (PTSD)
                                                                              • social isolation, family dislocation
                                                                                • stress
                                                                                  • financial loss or economic disadvantage
                                                                                    • cardiovascular disease, musculoskeletal disorders, immune deficiency and gastrointestinal disorders (for example, as a result of stress)

                                                                                      Who is most at risk

                                                                                      While anyone can experience work-related gendered violence, certain conditions make some groups of people more likely to experience it.

                                                                                      In a Victorian survey, over 60% of women reported that they had experienced some form of gendered violence at work and have felt at risk in their workplaces (VTHC).

                                                                                      An Australian Human Rights Commission (AHRC) survey on sexual harassment found that women are more likely than men to experience sexual harassment in the workplace, and more likely to experience sexual harassment that causes 'extreme offence' or 'extreme intimidation'.

                                                                                      It also found that in the 5 years before 2018:

                                                                                      • People who identify as gay, lesbian, bisexual or with another sexual orientation (including pansexual, queer, asexual, aromantic, undecided, not sure, questioning) were significantly more likely than those who identify as straight or heterosexual to be sexually harassed in the workplace.
                                                                                        • Almost two-thirds of victims of sexual harassment were under 40 years of age.
                                                                                          • In the five years until 2018, work-related sexual harassment was experienced at substantially higher rates among people who identified as Aboriginal and Torres Strait Islander (53%) compared with those who did not (32%).
                                                                                            • People with disability were more likely than those without disability to have been sexually harassed in their workplace (44% and 32% respectively).

                                                                                              The risk of experiencing harm from gendered violence rises when a person faces multiple forms of discrimination. Attributes such as gender, sexuality, migration status, disability and literacy can combine (intersect) and increase a person's vulnerability. In addition, employees in insecure work (for example casual, labour hire or part-time work) tend to be exposed more to violence and sexual harassment, especially when combined with the above attributes that can often be discriminated against. All of these can also make employees less likely to report.

                                                                                              The AHRC survey found sexual harassment to be more prevalent in industries including information, media and telecommunications; arts and recreation services; electricity, gas, water and waste services; and retail trade. However, violence can occur in any industry or occupation, and it may be less likely to be reported in some industries where it is seen as a normal part of the job.

                                                                                              Work-related factors that can contribute to the risk

                                                                                              Factors that can contribute to work-related gendered violence include workplaces where:

                                                                                              • power is distributed unequally along gendered lines (for example, workplaces where men control positions of power, and/or women are in vulnerable positions in the labour market)
                                                                                                • there is a culture of sexism, homophobia and norms that support gendered violence
                                                                                                  • violent and aggressive behaviour is supported, accepted and rewarded

                                                                                                    The risk of gendered violence can also be affected by the type of work being done, work systems, and the physical environment of the workplace.

                                                                                                    Preventing work-related gendered violence

                                                                                                    Preventing work-related gendered violence involves:

                                                                                                    • identifying the hazards and assessing the risks
                                                                                                      • implementing measures to eliminate or control the risks
                                                                                                        • reviewing the effectiveness of control measures to ensure they are working, and improving them where needed

                                                                                                          Identifying hazards and assessing risks

                                                                                                          To identify the potential for gendered violence, you need to gather information on and understand what hazards exist in your workplace, and assess the associated risk.

                                                                                                          When gathering information, consult with employees, HSRs and health and safety committees if you have them, and with customers and clients. Ways to gather information to identify areas of concern include:

                                                                                                          • staff satisfaction surveys
                                                                                                            • staff exit interviews and surveys
                                                                                                              • monitoring information like hazard and incident reports, and WorkCover claims
                                                                                                                • reviewing patterns of absenteeism and sick leave

                                                                                                                  Don’t rely only on formal reports of gendered violence incidents. A lack of reports doesn’t mean that incidents are not happening. It may simply mean that people are not reporting incidents because they don’t know how or feel safe and supported to do so. You can also look out for more subtle signs and symptoms of problems. For example, is an employee performing differently, suddenly taking more sick leave, isolating themselves, or not attending work functions? Is there an awkwardness or lack of communication between employees?

                                                                                                                  To determine the likelihood that someone will be harmed by work-related gendered violence, ask:

                                                                                                                  • How often are particular tasks done? Does this make harm more or less likely to occur?
                                                                                                                    • Has gendered violence happened before, either in this workplace or somewhere else? If it has happened, how often does it happen?
                                                                                                                      • What are the potential consequences? Will it cause mental or physical injury, or death?

                                                                                                                        Consultation

                                                                                                                        Employers must consult with employees and HSRs about health and safety matters that could directly affect them. Drawing on the experience, knowledge and ideas of employees is more likely to result in the identification of all hazards and the selection and implementation of effective risk control measures.

                                                                                                                        Consultation needs to involve:

                                                                                                                        • sharing information about anything that could affect workplace health and safety – information should be timely and in a form that can be understood by all employees, including in other languages where appropriate
                                                                                                                          • giving all employees a reasonable opportunity to express their views
                                                                                                                            • consideration of employee views

                                                                                                                              Preventing work-related gendered violence checklist

                                                                                                                              Scan your workplace culture and assess your workplace against the statements below. Are they all true for your workplace? Any that aren’t may indicate risk factors to be addressed

                                                                                                                                                      Eliminating or controlling the risks

                                                                                                                                                      Duty holders must eliminate the risk of gendered violence, so far as is reasonably practicable, by removing the hazards associated with those risks.

                                                                                                                                                      A very effective way to eliminate the risk of gendered violence is to establish and maintain safe and inclusive workplace cultures and systems, where disrespect and incivility isn't tolerated. It may also be possible to adjust work systems and the environment to entirely eliminate exposure to some gendered violence risks (such as contacting clients by phone, rather than in person, where possible to eliminate the risk of physical violence).

                                                                                                                                                      If it is not reasonably practicable to eliminate the risk, then the risk needs to be minimised by implementing a range of control measures. You may need to implement certain measures across the whole organisation, as well as in specific work areas.

                                                                                                                                                      Reviewing risk control measures

                                                                                                                                                      Reviews help employers to check whether risk control measures are working. They may also identify possible improvements to their effectiveness through changes to the physical environment, new work procedures, and/or additional training.

                                                                                                                                                      A review of risk control measures can include an examination of the physical environment, work functions and tasks.

                                                                                                                                                      A review of risk control measures should occur:

                                                                                                                                                      • at a regular time – for example annually
                                                                                                                                                        • when employee or HSR feedback indicates risk control measures are ineffective or not as effective as they should be
                                                                                                                                                          • when an HSR or health and safety committee request a review
                                                                                                                                                            • when there have been significant changes in the work environment or work tasks
                                                                                                                                                              • after an incident or near miss
                                                                                                                                                                • when state of knowledge changes

                                                                                                                                                                  Responding to work-related gendered violence

                                                                                                                                                                  Responses to work-related gendered violence will vary depending on the nature and severity of the incident but employers should respond quickly and appropriately.

                                                                                                                                                                  Systems should be in place that guide what to do at the time of, and immediately after, an incident.

                                                                                                                                                                  Physical assault, sexual assault and threats to harm someone should be referred to the police. If a matter has been referred to police, the incident should still be investigated, to assess whether risk-controls are effective and the response procedures worked the way they were supposed to.

                                                                                                                                                                  Responding to incidents

                                                                                                                                                                  A response system should address:

                                                                                                                                                                  • immediate safety issues
                                                                                                                                                                    • medical treatment
                                                                                                                                                                      • notifications required by external agencies such as police, fire, ambulance and WorkSafe
                                                                                                                                                                        • internal reporting
                                                                                                                                                                          • engagement of support services and referrals

                                                                                                                                                                            Incident response policies and procedures should be supported by training to ensure that employees are familiar with them.

                                                                                                                                                                            Managers and supervisors should be trained in handling disclosures of gendered violence incidents in ways that ensure the complainant does not experience further harm from making the complaint.

                                                                                                                                                                            Referral to other agencies

                                                                                                                                                                            A complainant may wish to contact other agencies about their complaint. When dealing with the incident and discussing referral, it's very important to respect the complainant's desired outcome and preferred way of managing the complaint.

                                                                                                                                                                            If the complainant wishes, it may be appropriate for them to contact:

                                                                                                                                                                            • Victorian Equal Opportunity and Human Rights Commission on complaints of sexual harassment or discrimination
                                                                                                                                                                              • Victoria Police on matters that may be criminal offences