Sexual harassment in the workplace - Section 28A, SDA criteria

Sexual harassment in the workplace is rigorously defined under Section 28A of the Sex Discrimination Act 1984 (Cth) (SDA). This guidance note unpacks the essential criteria used to establish sexual harassment, highlighting the complex legal thresholds that practitioners and organisations must navigate to ensure compliance and mitigate risks. It draws on key case law and statutory interpretations, illustrating the nuanced application of the SDA in diverse workplace scenarios.

Topics Covered

• Section 28A, SDA - Criterion 1: what are sexual advances, sexual favours or conduct of a sexual nature?
• Section 28A, SDA - Criterion 2: what is unwelcome conduct?
• Section 28A, SDA - Criterion 3: would a reasonable person anticipate the possibility that the person would be offended, humiliated or intimidated?

Essential Insights

• Understand the broad scope of “sexual conduct” beyond explicit acts, including innuendo and implied behaviours.
• Assess unwelcome conduct through both subjective experiences and objective legal standards.
• Recognise how power imbalances and workplace dynamics influence legal outcomes.
• Discover how courts interpret “reasonable person” standards in varied workplace contexts.
• Evaluate the interplay between sexual harassment and criminal conduct without full procedural details.
• Explore case law examples that reveal subtle distinctions in what constitutes harassment under the SDA.