Workplace sexual harassment: What you need to know
Sexual harassment is any unwelcome sexual behaviour that a reasonable person could anticipate may make another person feel offended, humiliated or intimidated in that situation.
There are three parts to the legal definition of sexual harassment:
1- Unwelcome behaviour
2- Sexual behaviour
3- Behaviour that a reasonable person could expect may make another person feel offended or uncomfortable
UNWELCOME BEHAVIOUR
The first part of the definition asks whether the behaviour was unwelcome.
Unwelcome behaviour means unwanted or uninvited behaviour that makes a person feel offended, embarrassed or frightened. Whether behaviour is unwelcome is a question for the person harassed.
The behaviour may still be considered unwelcome under the law, even where:
- other people may not consider it unwelcome
- it is common behaviour within the workplace
- it was not intended to be unwelcome or sexual in nature.
Behaviour can also become unwelcome at any time. Even if you thought the behaviour was ok in the past, you can still decide that it is no longer welcome.
SEXUAL BEHAVIOUR
The second part of the definition asks whether the behaviour was of a sexual nature. Sexual harassment is not always obvious. It includes a wide range of behaviours.
The most common sexually harassing behaviours are:
Sexually suggestive comments or jokes that offend or intimidate
Intrusive questions about a person’s private life or physical apperance
Inappropriate starting or leering
Inappropriate physical contact
Unwelcome touching, hugging cornering or kissing
Other examples of sexual harassment include:
Sharing or threatening to share intimate images or video without consent
Image or videos that are sexually suggestive or that constitute a sexual advance
Repeated or inappropriate invitations to go out dates
Request or pressure for sex or other sexual acts
Sexually explicit gifts, images, videos, cartoons, drawings, photographs or jokes
Actual or attempted rape or sexual assault
Being followed or watched inappropriately, or someone loitering inappropriately, either in person or via technology
Sexually explicit comments made in person or in writing, or indecent messages (SMS, social media), phone calls or emails-includiing the use of emojis with sexual connotations
Sexual gestures, incident exposure or the body
Technology-facilitated unwelcome conduct of aa sexual nature-including on virtual meetings
Repeated or inappropriate advances on email or other online social technologies.
BEHAVIOUR THAT A REASONABLE PERSON COULD ANTICIPATE MAY MAKE ANOTHER PERSON FEEL OFFENDED, INTIMIDATED OR HUMILIATED
The final part of the definition asks whether the behaviour occurred in circumstances in which a reasonable person would be able to anticipate the possibility that such behaviour would offend, humiliate, or intimidate the person who says they have been harassed.
This part of the definition is most relevant if a workplace sexual harassment case goes to court. If that happens, the court will consider: would a person witnessing this behaviour, who is aware of the context surrounding the behaviour, consider it to be inappropriate?
What is a ‘reasonable person’?
A ‘reasonable person’ can be taken to mean a neutral and unbiased observer.
If a sexual harassment complaint is taken to court, the context surrounding the behaviour will be considered. This includes the personal characteristics of the person harassed, including their:
- sex
- sexual orientation, gender identity, intersex status
- marital or relationship status
- age
- race, colour or national or ethnic origin
- any disability
The court also considers the relationship between the people involved.
Most complaints of sexual harassment are not taken to court.
Sexual harassment can happen in person, over the phone and online.
It is not always obvious. It can include one-off incidents or repeated behaviour.
Sexual harassment does not have to be directed at a specific person. It can also affect people who are exposed to or witness it (for example, overhearing a conversation between colleagues or seeing a colleague’s sexually explicit screensaver).
Definition of workplace sexual harassment
In Indonesia, workplace sexual harassment is against the law.
Sexual harassment is against the law if it happens:
- between individuals who have a particular workplace relationship, or
- during work, or in connection with work.
Workplace relationships
It is against the law:
- for an employer to sexually harass an employee or worker
- for an employer to sexually harass people who are seeking to become employees or workers
- for an employee or worker to sexually harass another employee or worker
- for an employee or worker to sexually harass people who are seeking to become employees or workers.
Workers include:
- full-time, part-time and casual workers
- workers on probation
- contract-based workers
- interns and apprentices
- volunteers (except where an organisation is run entirely by volunteers)
- students
- self-employed workers.
Another worker could be a manager. It could also be a worker who is more senior, less senior, or at the same level as you.
In connection with the workplace
There are also people other than workers and employers in the workplace (for example, clients, customers and contractors). The law protects you from workplace sexual harassment by these people as well).
A workplace includes any place where work is done and includes any place where a worker goes, or is likely to be, while working. In addition to your main place of work, this includes:
Common areas such as lifts, entrances, reception areas, corridors, kitchens and bathrooms.
Working remotely from home or another location.
Agency or on-call work, including travel to different environments and/or other people’s homes, to conduct work duties.
Offsite and onsite conferences, training programs and any other professional development opportunities.
Transportation (i.e. vehicles, vessel, aircraft), travel and accommodation arrangements when workers are travelling for work.
Work social and networking events (i.e. after-work drinks), especially when arranged or supported by an employer.
ONLINE SEXUAL HARASSMENT
Sexually harassing someone using devices used for work, such as phones, computers and tablets can still be against the law—even if they are your own personal devices.
The sexual harassment of workers through social media, even if using private equipment or during non-work hours, may still be against the law.
Examples of workplace online sexual harassment:
Lea’s employer sends messages on social media
Lea recently started her first ever job, at a supermarket. The owner of the store, Jonno, seems to spend a lot more time watching her, and asking her questions, compared to the other workers. After work one day, Lea checks her phone and sees a message from Jonno on her social media, ‘I’ve been wanting to ask you ever since you started working for me, do you have a boyfriend?‘ Lea does not reply to the message. When she wakes up the next morning, Lea has 37 more messages from Jonno, asking questions about her personal life. Even though this happened on their private social media accounts, because Jonno is Lea’s employer, this could still be workplace sexual harassment.
Sami’s co-worker compliments his appearance
Sami works as a junior agent at a real estate company. One of the senior agents, Dale, has always been very friendly. Recently, Dale has started complimenting Sami on his appearance several times a day, saying things like, ‘Wow, have you been working out? Check out those guns’ and whistling when he walks past. Sami asks Dale to stop doing this as it makes him uncomfortable and he’s noticed the other agents giving them strange looks. Dale says, ‘Don’t worry mate, it’s ok. I’m married, everyone knows that. Plus, I’m not gay. It’s just a bit of fun.’ Because Sami and Dale are co-workers, this could be workplace sexual harassment.
THE CAUSES OF WORKPLACE SEXUAL HARASSMENT
Sexual harassment in the workplace has been against the law in Indonesia. Unfortunately it is still common. A 2018 survey found that:
- 1 in 3 people had experienced workplace sexual harassment in the last five years.
- Young workers were even more likely to have been sexually harassed; 45% of workers aged 18-29 reported being sexually harassed at work in the last five years.
Power imbalances
Workplace sexual harassment is primarily caused by imbalances in power between different people in the workplace. These power imbalances stem from many different factors, including:
- personal characteristics such as gender, race, disability and age
- visa status
- economic vulnerability
- geographic location
- career stage
People who are perceived as being less powerful because of these, or other factors, are more likely to be the target of sexual harassment.
In Indonesian workplaces, the main power imbalance is gender inequality. This explains why women are more likely to be sexually harassed than men.
Reducing gender inequality and other forms of discrimination and disadvantage that exist in society, and in the workplace, is key to preventing workplace sexual harassment.
Learn more how our Workplace Harassment Prevention Training could help your organization. Click here.
Reducing gender inequality and other forms of discrimination and disadvantage that exist in society, and in the workplace, is key to preventing workplace sexual harassment.
OTHER WORKPLACE RIGHTS
Workplace sexual harassment is against the law.
It is also against the law for your employer to treat you unfairly, or to punish you, because you:
- made, or did not make, a complaint about workplace sexual harassment
- proposed to make a complaint
- helped someone else make a complaint
- raised an issue about sexual harassment in your workplace.
It is also against the law to coerce a person to make, or not make, a complaint or to provide, or not provide, a witness statement for another person’s complaint.
To coerce means to force someone to do something they do not want to do, for example, through fear, intimidation or threats.
Some examples of unfair treatment which could be against the law include:
- ending your employment
- offering you fewer shifts or fewer hours
- not allowing you to attend training
- demoting you
- transferring you to a different team or location, against your wishes
- threatening you to try to stop you from making a complaint.
Unfortunately, it is not uncommon for people to be punished because they have reported workplace sexual harassment.
However, if you believe you have been treated unfairly or punished for complaining about workplace sexual harassment, there are actions you can take.
Work health and safety laws place responsibilities on organisations, workers and others in a workplace to take steps to prevent and address sexual harassment.
Employers
Employers have a responsibility to do everything they reasonably can to make sure the workplace is safe. This includes taking action to prevent, and respond to, workplace sexual harassment.
Officers
Officers (key decision makers) must take care to ensure that the organisation complies with Workplace Harassment Safety obligations. This includes conducting investigations where appropriate.
Workers
Workers are responsible for taking reasonable care of their own health and safety while at work, and not negatively impacting the health and safety of others. This includes not sexually harassing others and following reasonable instructions from their employer.
Others
Others in the workplace (including customers, clients and patients) are responsible for taking reasonable care of their own health and safety, and not negatively impacting the health and safety of others. This includes not sexually harassing others and following reasonable instructions relating to health and safety.
Everyone has a role to play in preventing and addressing workplace sexual harassment.
WHAT TO DO IF YOU ARE SEXUALLY HARASSED AT WORK
If you are sexually harassed in the workplace there are a number of things you can do, on your own, or with help from others.
If you are sexually harassed in the workplace there are a number of different things you can do including:
- Remove yourself from the situation by logging off your device, hanging up the phone, or walking away.
- Call the police if you feel unsafe.
- Ask for help from your co-workers, manager, friends, parents or other family members, a trusted adult or a counselling service.
- Keep a record of what happened, when and where it happened, who was involved and anything else you think may be important, in case you wish to make a complaint or report (now or at a later date). If the harassment occurred on the phone or social media, consider taking screenshots as evidence of the harassment.
- Make an internal complaint or report to management or human resources (as outlined in your workplace’s relevant policy or procedure, if they have one).
It is up to you to decide what you want to do, based on what you feel is best for you.
Everyone reacts to stress differently
There is no one right way to respond to sexual harassment, just like there is no wrong way to respond. We all react to stress and trauma differently.
When you feel threatened, your body’s automatic stress response takes over and you enter survival mode. This is not something that you can control; your body does this automatically to try to protect you. People generally respond to threats by fighting, fleeing (running away), freezing (shutting down) or fawning (trying to please the person threatening them in an attempt to make the threat stop).
Freezing and fawning are normal responses to a threat or stress. If you do not fight back or do not run away when you are being harassed, this does not mean that you allowed the harassment to happen.
REPORTING WORKPLACE SEXUAL HARASSMENT
You also have the option of reporting workplace sexual harassment. There are both internal (within your workplace) and external (outside your workplace) reporting options.
Complaint and report:
We are using the word report here, but some organisations use the word ‘complaint’ instead. In this context, they mean the same thing. Sometimes an informal complaint or report is called a ‘disclosure’.
Address the harassment yourself If you feel safe:
- Speak to the person who harassed you.
- Let them know their behaviour makes you uncomfortable.
- Calmly explain why their behaviour is unacceptable.
Ask for help to address the harassment
- Ask a trusted co-worker or manager to have a private conversation with the harasser about their behaviour.
- This option works best if you have a clear idea of what you would like to happen when you ask for help.
- It is possible that the person you ask for help may have a different opinion to you on how the harassment should be dealt with. For example, if the harasser’s behaviours are repeated or likely to affect others in the workplace, management may need to take more direct action to ensure both your safety, and the safety of your co-workers.
- Even if this is the case, it is important that your safety and wishes are respected and that management are honest with you about what they plan to do.
- Employers have a legal responsibility to do everything they reasonably can to make the workplace safe.
You may also choose to make a formal report about workplace sexual harassment. You can make an:
- internal report (within your organisation)
- external report (with an independent organisation).
- It may require a formal investigation, where information is gathered about the circumstances of the harassment.
- It can result in several possible outcomes, such as an apology, compensation, a change in policy, an agreement to provide training for staff or terminating the employment of the harasser.
- It is important to know the harasser will probably be told about the complaint against them and usually will have the opportunity to respond.
- Some workplaces have policies that explain how to make an internal complaint about bullying, harassment or discrimination.
- Some workplaces have dedicated sexual harassment policies and procedures.
- If you do not know if your workplace has a sexual harassment policy or complaints process, you can ask a co-worker, your manager or your human resources department for more information.
- The complaints process is different for each organisation but it may involve making a complaint to your manager, human resources or a health and safety representative.
- If you make an internal complaint, the complaint will be managed by your organisation and follow the organisation’s workplace policies.
External reporting
- You also have the option of making a workplace sexual harassment report to an Government agency.
- You may choose to do this for several reasons, including:
- your organisation does not have a clear reporting process
- you are unhappy with the way your internal report has been dealt with, or
- you do not feel comfortable making an internal report.