How to identify sexual harassment in the workplace – and what to do about it Fear. Humiliation. Violated. Afraid. Confused. Angry. Frustrated. Offended. Belittled. Grief. These are the words of our client who was sexually harassed in the workplace. Each word has its own meaning; its own consequence. Sexual harassment in the workplace still occurs. It is behavior that happened last year, last week and yesterday. It is happening now. What classifies as sexual harassment? The legal definition of sexual harassment is:An unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances. What it means in real life varies. Some examples how our clients have been sexually harassed in the workplace include behaviors such as: Receiving text messages of a sexual nature Being offered a massage Receiving unwanted invitations to meet up Having unwelcome conversations about extra marital affairs Being touched, patted, groped and slapped Being hugged or forced into close body contact Being asked to discuss their sex life Being stalked on Facebook or Instagram (or in real life) Receiving comments about their body and appearance Being questioned about their body and appearance Being leered at Being sent emails with sexually explicit pictures Remember: all of these behaviors happened while our clients were at work, going about their usual work day and doing their usual work duties. At the extreme end these behaviors have lead to our clients suffering from severe psychological injuries including post-traumatic stress disorder so that they can no longer function day to day. For those who avoid such severe consequences of psychological injury there is still the embarrassment, the hurt, humiliation and distress. What can you do if you have been subject to sexual harassment in the workplace? If you have been sexually harassed at work you have options. Depending on the circumstance you can make an application to: Workcover Comcare Australian Human Rights Commission / Federal Court Worksafe Victoria Police Victims of Crime Fair Work Commission Equal Opportunity Commission / VCAT Your employer It is important to note that there are time limits that apply depending on the type of claim you make. You should therefore seek prompt legal advice. Arnold Thomas & Becker are expert personal injury lawyers. We specialize in claims where people have suffered physical and mental injuries as a result of sexual harassment in the workplace and we will fight for your right to receive compensation. We act for people making claims under Workers Compensation legislation including both Workcover and Comcare and through the Australian Human Rights Commission. Workcover If you have suffered injury as a result of sexual harassment in the workplace you may lodge a claim under the Workplace Injury Rehabilitation and Compensation Act 2013. When you have an accepted workcover claim you are entitled to weekly payments for periods that you are unable to work, medical expenses and payment of a lump sum for permanent impairment (if assessed at above 30% for a psychological injury as assessed under the American Medical Association Guides). Whilst the person who sexually harasses you is responsible for the harassment, employers can also be held accountable for the actions of employees. A common law claim for damages may be commenced if you have a serious injury which is defined as a “permanent severe mental or permanent severe behavioral disturbance or disorder.” If successful, these claims can result in lump sum payments for past and future economic loss in addition to awards of damages for pain and suffering capped at approximately $640,000.00 Comcare If you have suffered injury as a result of sexual harassment in the workplace and your employer is a self-insurer under the Comcare scheme then you may lodge a claim under the Safety Rehabilitation and Compensation Act 1988. When you have an accepted Comcare claim you are entitled to compensation benefits including incapacity payments during periods of incapacity, payment of medical and rehabilitation costs, payment of a lump sum for permanent impairment (if assessed at above 10% for a psychological injury as assessed under the Comcare guides) and in some cases you can bring a common law action for damages if your injuries were caused by negligence. The cap for general damages under the Safety Rehabilitation and Compensation Act is $110,000.00. Australian Human Rights Commission / Federal Court In addition to any entitlements under the workers compensation schemes you may also be able to commence a claim under the Sex Discrimination Act 1984 by making an application to the Australian Human Rights Commission. Most complaints lodged with the Australian Human Rights Commission go through a conciliation process. If your complaint does not resolve at the Australian Human Rights Commission, you have the option to issue proceedings in the Federal Court alleging discrimination in the workplace. If you are successful in a Federal Court case the Court can award you compensation as a lump sum for your past and future loss of earnings and also for your hurt and humiliation. There have been recent judgments where the court has awarded $100,000 for general damages to the complainant in circumstances where it was found that the harassment occurred and that the complainant had suffered psychological injury with ongoing consequences. You may also consider: Worksafe Worksafe can provide advice and assistance about workplace sexual harassment. You can report an incident or make a complaint about sexual harassment directly to Worksafe. Worksafe can also provide resources to help employees that have experienced or witnessed work related sexual harassment. Victoria Police Some forms of sexual harassment could constitute criminal offence and should be reported to the police. If you need to make a complaint or report to the police you need to contact the relevant state Sexual Offences division. In addition you may be able to make a claim under the Sentencing Act for compensation where the perpetrator pleads guilty or there is a finding of guilt by a court. Victims of Crime Compensation You may apply to the Victims of Crime Compensation and Counselling Service which provides limited compensation and counselling services if you have been directly injured as a result of a violent crime. The offender does not need to be apprehended or charged or convicted in order to apply but the crime must be reported to the police. Fair Work Commission You may apply to the Fair Work Commission who can deal with disputes about sexual harassment in connection with work under the Fair Work Act 2009. The Fair Work Commission may make a stop sexual harassment order or an order for lost wages. Equal Opportunity Commission / VCAT You can make a complaint to the Victorian Equal Opportunity & Human Rights Commission (VEOHRC). The VEOHRC has a voluntary dispute resolution service where a complainant may seek outcomes such as an apology, lost wages or a promise to change behavior or to undertake training. The Commission does not have the power to award compensation. If your complaint does not resolve via dispute resolution then you may be able to take your complaint to the Victorian Civil and Administrative Tribunal (VCAT). Your employer You can talk to people such as your manager, health and safety representative or people and culture department. Many workplaces can help prevent sexual harassment by providing information, instruction, training and support and can also address the unwanted or offensive behaviors. Stop the embarrassment. Stop the hurt. Stop the humiliation. You can take action. Contact us Arnold Thomas & Becker offer a no obligation enquiry service which is absolutely free. You can call us on 9034 8433 or email [email protected] If you don’t win, there’s no fee.