Rules about workplace sexual harassment

Understand how people are protected from workplace sexual harassment. Learn what it is and what your rights and obligations are.

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Protection from sexual harassment

A person must not sexually harass another person at work or in connection with work. It’s against the law.

Protection from sexual harassment comes from employment, equal opportunity, anti-discrimination, and work health and safety laws.

In some circumstances, behaviour that could be sexual harassment may also be a criminal offence.

In general, these laws:

  • prohibit sexual harassment in connection with work
  • provide ways for people to make reports about sexual harassment
  • require employers to take proactive steps to prevent sexual harassment
  • give government agencies, including us (the Fair Work Ombudsman), the ability to respond when laws are broken
  • make it possible for employers or principalsA person or company that engages an independent contractor to perform work. to be held legally responsible (vicariously liable) for the actions of their employees or agents in some circumstances.

It’s important that everyone understands the rules that must be followed and what rights and obligations they have.

Tip: Conduct of customers and clients

Other individuals such as clients and customers of a business must not sexually harass workers doing their jobs. If they do, they could be held liable for this unlawful conduct under the Fair Work Act or other laws.

Employers should take steps to prevent and address unwanted or offensive behaviour by customers and clients.

What is sexual harassment

Sexual harassment is:

  • an unwelcome sexual advance or an unwelcome request for sexual favours to the person being harassed, or
  • other unwelcome conduct of a sexual nature towards the person being harassed.

To be sexual harassment, a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person being harassed would be:

  • offended
  • humiliated, or
  • intimidated.

Important: When working out whether behaviour is sexual harassment, it’s important to be aware that:

  • the intention of the alleged harasser doesn’t matter - a person can sexually harass someone even if they don’t intend to or they say they don’t mean it
  • it can happen in person where you work, or outside of the physical workplace where there is still a connection to work, including online, in training, while travelling for work, or even outside of work hours (for example, at a work party)
  • a behaviour that may be appropriate in one situation, could be sexual harassment in a different situation
  • it doesn’t have to be repeated or continuous, it can be a one-off incident.

Examples of sexual harassment can include:

  • inappropriate physical contact, such as unwelcome touching
  • staring or leering
  • a suggestive comment or joke
  • showing someone a sexually explicit picture, poster or video
  • an unwanted invitation to go out on dates
  • a request for sex
  • intrusive questioning about a person's private life or body
  • unnecessary familiarity, such as deliberately brushing up against a person
  • an insult or a taunt of a sexual nature
  • a sexually explicit email, text message or online messaging.

Tip: Complete free online training

The Fair Work Commission has a free online training course to help you learn what workplace sexual harassment is, how it impacts those that experience and witness it, and what resources and supports are available.

Go to Fair Work Commission – Workplace sexual harassment.

Who’s covered by sexual harassment laws

These laws protect certain workers in Australia, including job applicants. They also protect people conducting a business or undertaking including a self-employed person or sole trader.

A worker includes:

Other behaviour

Behaviour that isn’t sexual harassment might still be considered bullying or discrimination in the workplace. It could also breach anti-discrimination or work health and safety laws.

Important: Some forms of sexual harassment can also be considered bullying if the behaviour is repeated or continuous.

The Fair Work Act also prohibits an employer from taking adverse actionAn action taken by an employer, employee, contractor or industrial association, which may be unlawful depending on the reason for the action. For example dismissing an employee for taking industrial action. against an employee or a job applicant for discriminatory reasons. For example, firing or demoting someone.

Find out more at:

How to make a report

People can choose to handle situations of possible sexual harassment however they feel comfortable. This may include seeking advice, support or choosing to make a report or complaint. Different pathways can offer different outcomes.

Find out more at:

Some forms of sexual harassment could constitute a criminal offence and should be reported to the police.

Important: If you have experienced sexual assault and you would like to make a complaint or report it to the police, you can check your relevant state and territory police contacts.

Duty to prevent and respond to sexual harassment

Employers must take reasonable steps to eliminate, as far as possible, sexual harassment in connection with work. These rules are set out in anti-discrimination and work health and safety laws and are regulated by different legal frameworks.

Tip: Information and free resources about the ‘positive duty’

Under the Sex Discrimination Act, organisations and businesses have a positive duty to take reasonable and proportionate steps to eliminate work-related sexual harassment, sexist conduct and related victimisation, as far as possible.

Simply responding to reports of unlawful behaviours is not enough. Taking preventative action will help to create safe, respectful and inclusive workplaces.

The Australian Human Rights Commission (AHRC) has certain powers to monitor and enforce the positive duty in the Sex Discrimination Act, including the power to conduct inquiries into businesses that it reasonably suspects are not complying with the positive duty. Learn more at The positive duty in the Sex Discrimination Act.

Each state and territory have a local anti-discrimination body, which can consider and investigate breaches of state or territory anti-discrimination laws in workplaces. For more information, find your relevant state or territory anti-discrimination body at Related government sites.

Tip: Information about hostile workplace environments

Sexual harassment and sex-based harassment can thrive in a work environment or culture where people are exposed to or witness sexually charged behaviour, even if the behaviour is not directed to a particular person.

The Sex Discrimination Act makes it unlawful for a person to subject another person to a workplace environment that is hostile on the ground of sex.

Examples of behaviours that can create a hostile workplace environment include making sexist, derogatory, suggestive or sexual comments or jokes, or displaying or circulating a sexually explicit poster in the workplace.

Learn more about the hostile working environments at the AHRC website.

Tip: Learn more about psychosocial hazards

Work health and safety laws require persons conducting a business or undertaking (such as employers) to eliminate psychosocial risks, or if that’s not possible, minimise these risks, so far as is reasonably practicable.

Psychosocial hazards, like sexual harassment, can harm workers’ mental health.

Learn more about psychosocial hazards and how to manage these at the Safe Work Australia website – Psychosocial hazards.

The Commonwealth and states and territories are responsible for implementing, regulating and enforcing WHS laws in their jurisdictions. For more information, visit Safe Work Australia’s website.

Vicarious liability

Employers or principalsA person or company that engages an independent contractor to perform work. can be held legally responsible for acts of sexual harassment that occur in the workplace or in connection with a person’s employment, even if they were not directly involved in, or knew about, the act. This is known as vicarious liability and is set out in the Fair Work Act as well as the Sex Discrimination Act.

However, an employer won’t be vicariously liable if they can demonstrate that they took all reasonable steps to prevent harassment from occurring in their workplaces.

What is considered ‘all reasonable steps’ may be different from one business to another.

Reasonable steps and factors to consider

Whether an employer or principal has taken reasonable steps to prevent sexual harassment depends on the circumstances. When deciding this, courts have looked at factors such as:

  • what preventative steps were taken before any sexual harassment occurred, including whether the employer or principal:
    • had clear, up-to-date policies
    • provided training
    • made sure employees or agents understood that sexual harassment is against the law, and whether this message was reinforced over time
  • the employer’s size and resources, as larger businesses with more resources will be expected to take more proactive steps than smaller ones
  • the culture of their workplace, including whether inappropriate behaviour was overlooked or tolerated
  • how complaints were handled, because failing to follow policies or properly respond to complaints can suggest a workplace culture that tolerates sexual harassment
  • any history of sexual harassment.

You may wish to seek independent advice about what steps may be considered reasonable for your business and circumstances. Find out how at Legal help.

Learn more about the steps at Preventing workplace sexual harassment.

Sexual harassment by workers

Workers must not sexually harass co-workers or others at work.

Sexual harassment in the course of employment can be serious misconductSerious misconduct involves an employee deliberately behaving in a way that is inconsistent with continuing their employment. Examples include: causing serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer’s business, theft, fraud, assault, sexual harassment or refusing to carry out a lawful and reasonable instruction that is part of the job. Other known term: misconduct. and a valid reason for dismissal. Find out about serious misconduct at Dismissal.

Tip: Work health and safety

Under work health and safety laws, workers have a duty to take reasonable care of their own and other’s health and safety while at work.

Workers must (as much as they reasonably can) follow reasonable instructions given by their employer (or the person conducting the business or undertaking) to allow them to comply with a health and safety duty. Workers must also co-operate with any reasonable workplace policy or procedure to prevent and respond to sexual harassment.

Depending on their role in the business or organisation, a worker (such as a manager or supervisor) may also be required to report sexual harassment as part of their workplace policies and procedures and check that processes are being followed.

For more information about work health and safety laws that apply to you, find your local WHS regulator at Related government sites.

Learn more about a worker’s duties under work health and safety laws at Safe Work Australia’s Workplace Sexual harassment – advice for workers resource.

Stay up to date with changes to workplace laws

The Fair Work Act was amended to prohibit workplace sexual harassment in 2023. These changes expanded the previous protections around sexual harassment in the workplace. Learn more about these changes at New workplace sexual harassment laws.

Stay up to date with important changes like these by subscribing to our email updates.

Source reference for page: Fair Work Act 2009 s. 340, 341, 342, 351, 527D and 527E and Sex Discrimination Act s28B, 47C and 106

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