Part 5: Accessorial/Bystanders

▪ In the context of sexual harassment, a bystander is a person who observes sexual harassment firsthand or hears about it subsequently.

▪ In the workplace, bystanders can include co-workers who are informed of workplace sexual harassment through the ’grapevine’ or are sought out by victims or harassers for support or advice.

▪ Bystanders also include a range of people formally authorised to receive reports of workplace sexual harassment, such as managers, supervisors, human resource employees or harassment contact officers.

▪ VicHealth, The Behavioural Insights Team, and Women Victoria put together a resource framed as the “ladder of active bystanding”, which shows a range of behaviours active bystanders are encouraged to use through bystander initiatives.

▪ Actions higher up the ladder are considered stronger ways of discouraging sexual harassment; these are considered to be more appropriate where the behaviour of the perpetrator is particularly intentional, severe, and explicit

Resources

▪ https://www.ag.gov.au/rights-and-protections/publications/roadmapfor-respect - Commonwealth Government response to AHRC report

▪ Respect@Work website

▪ https://humanrights.gov.au/time-for-respect-2022 -Time for Respect; fifth national survey on sexual harassment in Australian workplaces

▪ https://www.fwc.gov.au/documents/benchbooks/orders-to-stopsexual-harassment-transitional-benchbook.pdf

▪ https://www.fwc.gov.au/documents/consultation/consultation-draftsexual-harassment-disputes-benchbook-2023-03-27.pdf

Changes to the Sex Discrimination Act

Anne McCulloch

1 in 3 have experienced sexual harassment at work in the last 5 years

Sexually suggestive comments or jokes

Intrusive questions about private life or physical appearance

• unlawful sex discrimination

• sexual harassment

• sex-based harassment

• work environments that are hostile on the ground of sex

• victimisation in relation to these matters

• Not ‘of a sexual nature’

• Already a form of sexbased discrimination

• s.17Anti-DiscriminationAct – offend, humiliate on the basis of gender or gender identity

Unwelcome

• Not solicited or invited

• No need for victim to say unwelcome

Conduct

• Includes statements to or in the presence of – orally or in writing

‘In this day and age young women should not have to tell their older superiors that they do not want be sent salacious texts during or after working hours, nor have comments of a sexual nature made about them, or be directed towards them in their workplace.’

Demeaning

Sex

A reason

• Characteristic that generally applies or is imputed to a person of that sex

• Not the only reason

• Not the dominant reason

Reasonable Person Test – would have anticipated offence, humiliation or intimidation

The hypothetical reasonable bystander

Other protected attributes of the victim including age, sex, gender identity, disability

Relationship between victim and perpetrator

Any power imbalance

Seriousness of conduct

Repetition

Sex based Harassment Examples

Intrusive personal questions

Inappropriate comments and jokes

Sexist remarks about a person

Displaying images that are sexist or misogynistic

Requesting the person to engage in degrading conduct

Sex

Ben laughs at Jill and says she must have her period because she is always in the toilet and then puts sanitary products all over her desk

Vincent says that Emily should not be a paramedic because she is "feeble and weak". He also regularly tosses medical supplies or equipment at Emily with unnecessary force, which causes her to drop things or fall over, and then jokes that she is "too much of a little girl to do her job properly."

George regularly makes belittling comments to Anna about her appearance in front of clients

"Anna, you've put on some serious kilos, sweetheart" and "couldn't you make a bit more of an effort for the customers?“

George creates a mess and then tells John to "get Anna to clean that upshe's the help around here - it's what women are for after all".

She is "bloody hormonal all the time" and is "constantly hiding in the bathroom"

George also makes inappropriate comments about Anna’s menopausal symptoms

Sex based Harassment – Example Franco and Sharon

Franco is a male student teacher on his is final teaching placement.

Sharon is his supervisor responsible for approving his placement.

Sharon invited Franco out for a drink and he politely declined.

Franco's confidence is undermined by the comments, he can't deliver classes and he stops showing up for work

He “lacks empathy and compassion”.