What Is the Definition of Sexual Harassment? A Guide for Australian Businesses

Creating a safe, respectful workplace isn’t just the right thing to do - it’s a clear legal requirement in Australia. As an employer, you need a practical grasp of what sexual harassment means in law, how to recognise it, and what to do if a concern is raised.

Confusion about the definition can lead to harmful behaviour being minimised or missed, and that exposes people (and your business) to serious risk. The good news is that with the right policies, training and response processes, you can meet your obligations and support your team confidently.

In this guide, we break down the legal definition of sexual harassment in Australia, your duties as an employer, how to handle complaints fairly, and the key documents that help you stay compliant and protect your business.

What Is Sexual Harassment Under Australian Law?

Sexual harassment is unlawful across Australia. The central definition is found in the Sex Discrimination Act 1984 (Cth) (SDA). In simple terms, sexual harassment occurs when a person:

• Engages in unwelcome conduct of a sexual nature toward another person, and
• A reasonable person, having regard to the circumstances, would have anticipated the possibility that the other person would be offended, humiliated or intimidated.

There are a few important parts of this definition:

• Unwelcome: The behaviour is not invited or reciprocated. It does not matter if the person engaging in the behaviour thought it was harmless or “just a joke” - what matters is whether it was unwelcome in the circumstances.
• Sexual in nature: This can include comments, messages, jokes, images, gestures, propositions, or physical contact with a sexual context.
• Objective test: The law looks to whether a reasonable person would have anticipated the possibility of offence, humiliation or intimidation. It doesn’t need to be proven that the conduct actually caused distress (though evidence that it did will be relevant).

This definition applies broadly in work, including interactions between employees, managers, agency workers, contractors, volunteers, clients and visitors when there’s a work connection.

It’s also important to note that since recent reforms (often referred to as Respect@Work reforms), employers have a positive duty under the SDA to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment and related unlawful conduct in the workplace. The Australian Human Rights Commission (AHRC) now has powers to monitor and enforce this duty.

What Types of Conduct Are Covered (With Practical Examples)?

Sexual harassment can be obvious or subtle. It can be one serious incident or a pattern of behaviour. Some common examples include:

• Unwanted touching, hugs, or brushing against someone’s body
• Requests (explicit or implied) for sexual favours, including any “quid pro quo” suggestions
• Repeatedly asking a colleague out after they’ve said no
• Sexual jokes, innuendo or comments, including “banter” that a person finds unwelcome
• Circulating sexually explicit or suggestive content (memes, emails, DMs, images)
• Invasive questions about someone’s sex life or body, or comments about appearance
• Persistent staring, gestures or sexualised looks
• Threats of disadvantage or promises of reward linked to sexual cooperation

Sexual harassment does not require physical contact. Words or online behaviour alone can be enough. It can also happen outside the usual workplace - for example, at work social events, conferences, client sites, during travel, or via after-hours messages where there is a work connection.

Keep in mind that “consent” is not the same as someone silently tolerating behaviour. The law considers the broader circumstances - power imbalances, past interactions, bystander context and whether a reasonable person would have anticipated the possibility of offence or intimidation.

Employer Duties: What Are You Legally Required To Do?

Australian law doesn’t just prohibit sexual harassment; it requires employers to be proactive.

Your Positive Duty under the SDA

Under the SDA, employers and persons conducting a business or undertaking (PCBUs) must take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based harassment, hostile work environments on the ground of sex, and related victimisation. The AHRC can assess compliance and issue compliance notices, and courts can enforce those notices.

Vicarious Liability and “Reasonable Steps”

Businesses can be held vicariously liable for unlawful conduct by employees or agents unless they can show they took all reasonable steps to prevent it. What counts as “reasonable” depends on your size, resources, and risk profile, but typically includes:

• Having a clear, accessible workplace policy setting standards of conduct and complaint pathways
• Providing regular, practical training for all staff (including leaders) and refreshers over time
• Maintaining multiple, safe reporting channels (including escalation options)
• Responding to concerns promptly, fairly and confidentially
• Keeping records to demonstrate consistent enforcement

Employers also have a general duty of care as an employer to provide a safe workplace - which includes psychological safety - and obligations under work health and safety (WHS) laws to manage psychosocial hazards like bullying and harassment.

How Should You Handle Concerns or Complaints?

When a concern is raised - whether informal or a formal complaint - act quickly and follow a fair process. A good approach is to:

• Acknowledge the concern promptly and outline next steps
• Protect confidentiality as far as possible and remind all parties about non-victimisation
• Assess immediate safety risks and put interim measures in place if needed (for example, changed reporting lines or temporary separation of the parties)
• Decide on an appropriate response - informal resolution, a preliminary assessment, or a formal investigation depending on the circumstances
• Offer support options (EAP, HR support, a support person)
• Gather information impartially, allow each party to respond to relevant allegations and evidence, and keep detailed records
• Make findings on the balance of probabilities and implement appropriate outcomes consistently with your policies and contracts

In some cases, a short, precautionary suspension on full pay may be appropriate while you assess or investigate. If you take that step, make sure it’s lawful and reasonable - read more about suspending an employee pending investigation and consider tailored legal advice.

It also helps if your Employment Contract and policies clearly outline expected behaviour, investigation processes and potential outcomes. Where disciplinary action is appropriate, ensure your process aligns with contractual terms and any applicable workplace instruments to reduce the risk of claims. If the matter escalates or feels complex, our employment lawyers can help you navigate the process with confidence.

Training and culture are critical here. Consider scheduling regular, short training sessions focused on real-life scenarios and bystander tools - here’s a helpful overview of legal requirements for training employees and how to make it practical.

Which Laws Apply and Where Do Complaints Go?

Several legal frameworks work together to prevent and address sexual harassment in Australian workplaces:

• Sex Discrimination Act 1984 (Cth): Prohibits sexual harassment and imposes a positive duty on employers to take reasonable and proportionate measures to eliminate it. The AHRC can inquire into compliance and issue compliance notices; courts can enforce those notices.
• Fair Work Act 2009 (Cth): Creates prohibitions on sexual harassment in connection with work. The Fair Work Commission can deal with applications (including “stop sexual harassment” orders) and civil penalties can apply for contraventions - it’s not enforced by Fair Work “inspectors” in the harassment context.
• State and Territory Anti-Discrimination Laws: Each jurisdiction also bans sexual harassment and provides complaint avenues. Requirements and procedures vary by jurisdiction.
• Work Health and Safety (WHS) Laws: Require PCBUs to eliminate or minimise risks to health and safety, including psychosocial hazards such as harassment. WHS regulators can take compliance action where duties aren’t met.

In practice, workers may raise issues internally first, then with the AHRC or a state/territory body, or make applications to the Fair Work Commission, depending on the situation. Legal advice can help you understand the best pathway for a particular case and manage overlapping risks (for example, discrimination and WHS duties at the same time).

Policies, Training and Documents That Reduce Risk

Having tailored, up-to-date documents in place is one of the best ways to demonstrate you’ve taken reasonable and proportionate measures and reasonable steps to prevent unlawful conduct. Key tools include:

• Workplace Policy: A clear policy that defines sexual harassment and related conduct, sets behavioural standards, explains reporting options, and outlines investigation and outcome processes. Start with a comprehensive workplace policy written in plain English.
• Employment Contract: Your Employment Contract should require compliance with policies, set expectations for conduct, and address disciplinary processes and potential outcomes.
• Staff Handbook: A user-friendly summary of your values, standards and procedures that all staff receive on induction and acknowledge.
• Complaint and Investigation Procedure: A practical, step-by-step process that supports fair, confidential and timely handling of issues, and makes clear that victimisation will not be tolerated.
• Training Program and Records: Short, regular sessions tailored to your risks, with attendance records to evidence compliance. Consider manager-specific training that covers receiving complaints and managing bias.
• Performance and Termination Documents: Consistent templates for warnings, outcomes, and termination decisions can reduce disputes; our employee termination documents suite can form part of a defensible process when issues escalate.

If your business has dealt with complaints previously, review what worked and what didn’t. Many employers also prepare a short communications plan for sensitive matters so updates are consistent, timely and respectful.

Where allegations involve discrimination intertwined with harassment, specialist support is useful - see our service for workplace harassment and discrimination claims (employer) to understand your options.

Consequences Of Getting It Wrong (And How To Manage Risk)

Failing to prevent or respond properly to sexual harassment can have serious legal and business consequences, including:

• Compensation orders: Tribunals and courts can award monetary compensation to affected workers, and the Fair Work jurisdiction can impose civil penalties for breaches of the Fair Work Act’s sexual harassment provisions.
• Compliance action for positive duty: The AHRC can issue compliance notices regarding the SDA’s positive duty; courts can enforce those notices if you don’t comply.
• WHS enforcement: WHS regulators can take action where psychosocial risks aren’t managed (for example, improvement notices or prosecutions in serious cases).
• Reputational and cultural damage: Loss of trust, higher turnover, reduced engagement and productivity.

The best risk management is proactive: assess your risk profile (industry, workforce size, customer interactions), implement proportionate measures, train regularly, act early on concerns, and document what you do. If you’re unsure whether behaviour crosses the line or how to proceed, getting advice early can save time and costs later.

Key Takeaways

• Sexual harassment under Australian law involves unwelcome conduct of a sexual nature where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
• Employers have a positive duty to take reasonable and proportionate measures to eliminate sexual harassment and related conduct, and can be vicariously liable unless reasonable steps were taken to prevent it.
• Practical prevention includes a clear workplace policy, regular training, safe reporting options, fair investigations, and leadership that models respectful behaviour.
• Respond to complaints promptly, fairly and confidentially. Align actions with your Employment Contract and procedures, and seek advice where needed - especially if suspension or termination is on the table.
• Multiple legal frameworks apply (SDA, Fair Work Act, state/territory anti-discrimination laws and WHS). AHRC can enforce the positive duty and the Fair Work Commission can issue stop sexual harassment orders and civil penalties can apply for contraventions.
• Tailored documents, consistent training and good records demonstrate compliance and significantly reduce legal and cultural risk for your business.

If you’d like a consultation on sexual harassment compliance for your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.