| 5.1 | Sexual harassment of an employee is a form of unfair discrimination and is prohibited on the grounds of sex, gender, or sexual orientation. Same-sex harassment can amount to discrimination on the basis of sex, gender, sexual orientation and gender-based harassment. |
| 5.2 | Factors to establish sexual harassment |
Unwanted conduct
| 5.2.1 | There are different ways in which an employee may indicate that sexual conduct is unwanted, including non-verbal conduct such as walking away or not responding to the perpetrator. |
| 5.2.2. | Previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be acceptable to the employee. |
| 5.2.3 | Where a complainant has difficulty indicating to the perpetrator that the conduct is unwanted, such complainant may seek the assistance and intervention of another person such as a co-worker, superior, counsellor, human resource official, family member or friend. |
| 5.2.4 | The fact that the complainant does not indicate that the conduct is unwanted dos not entail that there has not been sexual harassment, if the conduct is such that the harasser/perpetrator ought to have known it could be regarded as unwanted. |
Nature and extent of the conduct
| 5.2.5 | The unwanted conduct must be of a sexual nature and includes physical, verbal, or non-verbal conduct, whether expressed directly or indirectly. Conduct amounting to sexual harassment may include— |
| 5.2.5.1 | physical conduct of a sexual nature, ranging from touching, kissing, to sexual assault and rape; |
| 5.2.5.2 | strip searching, including by a person of the same sex in the presence of the opposite sex, or with appropriate privacy; |
| 5.2.5.3 | following, watching, pursuing or accosting of an employee; |
| 5.2.5.4 | sexual attention, advances or proposals; or other behaviour, whether explicit or implicit, including suggestions, messages, advances, attention or proposals of a sexual nature; |
| 5.2.5.5 | implied or express threats of reprisal or actual reprisal to comply with sexually oriented requests, advances, attention or proposals; |
| 5.2.5.6 | verbal conduct such as innuendos, suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person's body, inappropriate enquiries about a person's sex life, whistling of a sexual nature and the sending by electronic means or otherwise of sexually explicit text; or |
| 5.2.5.7 | non-verbal conduct such as unwelcome gestures, indecent exposure and the display or sending by electronic means or otherwise of sexually explicit pictures or objects. |
| 5.2.6 | Sexual harassment may include, but is not limited to, victimization, quid pro quo harassment and sexual favouritism and creating or permitting a hostile working environment (i.e. conduct that creates an intimidating, hostile or humiliating working environment for the recipient). |
| 5.2.6.1 | Victimization occurs where an employee is victimized or intimidated for failing to submit to sexual advances, attention, or proposals or for complaining about gender-insensitive conduct. |
| 5.2.6.2 | Quid pro quo harassment occurs where a person such as an owner, employer, supervisor, member of management or co-employee, influences or attempts to influence an employee's employment circumstances (for example engagement, promotion, training, discipline, dismissal, salary increments or other benefits) by coercing or attempting to coerce an employee to surrender to sexual advances. |
| 5.2.6.3 | Sexual favouritism is a form of quid pro quo harassment, which occurs where a person in authority in the workplace seeks to utilise this power to reward those who respond to his or her sexual advances. |
| 5.2.7 | A single incident of unwelcome sexual conduct may constitute sexual harassment. |
Impact of the conduct
5.2.8 The conduct should constitute an impairment of the employee's dignity, taking into account:
| 5.2.8.1 | the circumstances of the employee; and |
| 5.2.8.2 | the respective positions of the employee and the perpetrator in the workplace. |
| 5.3 | Test for Sexual Harassment |
| 5.3.1 | Sexual harassment is unwelcome conduct of a sexual nature, whether direct or indirect, that the perpetrator knows or ought to know is not welcome. Sexual harassment may be offensive to the complainant, make the complainant feel uncomfortable or cause harm or inspire the reasonable belief that the complainant may be harmed. Sexual harassment may interfere with the work of the complainant although it need not necessarily do so. Sexual harassment violates the rights of an employee and constitutes a barrier to equality in the workplace. |
| 5.3.2 | The test for establishing whether there has been sexual harassment takes into account the following factors: |
| 5.3.2.1 | whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; |
| 5.3.2.2 | whether the sexual conduct was unwanted or unacceptable; |
| 5.3.2.3 | the nature and extent of the sexual conduct; and |
| 5.3.2.4 | the impact of the sexual conduct on the employee. |
