Defining Sexual Harassment: A History of the Commonwealth Legislation and its Critiques
| Published date | 01 March 2003 |
| Date | 01 March 2003 |
| DOI | http://doi.org/10.22145/flr.31.1.6 |
| Subject Matter | Comment |
DEFINING SEXUAL HARASSMENT: A HISTORY OF THE
COMMONWEALTH LEGISLATION AND ITS CRITIQUES
Gail Mason and Anna Chapman∗
INTRODUCTION
Sexual harassment was first recognised as a form of unlawful discrimination by an
Australian adjudicator almost twenty years ago.1 In the intervening years, the
Commonwealth and all state and territory legislatures have defined it in anti-
discrimination statutes as a prohibited behaviour in specified areas of life.2 Whilst
forms of harassing conduct that are not explicitly sexual in nature, such as those based
on disability or race, have also come to be recognised as unlawful in a small number of
anti-discrimination statutes,3 sexual harassment undoubtedly commands the most
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∗
Gail Mason, LLB, Dip Crim, MA, PhD, Faculty of Law, University of Sydney; Anna
Chapman, B Com, LLB (Hons), LLM, Centre for Employment and Labour Relations Law,
Law School, University of Melbourne. The authors would like to thank Helen Askew for
providing extensive research assistance and issues papers for this comment. This research
was funded by an ARC Grant.
1
O'Callaghan v Loder [1984] EOC ¶92– 023.
2 See
Sex Discrimination Act 1984 (Cth) ('SDA') pt II div 3; Anti-Discrimination Act 1977 (NSW)
('ADA (NSW)') pt 2A; Equal Opportunity Act 1995 (Vic) ('EOA (Vic)') pt 5; Anti-
Discrimination Act 1991 (Qld) ('ADA (Qld)') Chapter 3; Equal Opportunity Act 1984 (SA)
('EOA (SA)') s 87; Equal Opportunity Act 1984 (WA) ('EOA (WA)') pt II div 4; Anti-
Discrimination Act 1998 (Tas) ('ADA (Tas)') s 17(2), (3); Discrimination Act 1991 (ACT) ('DA
(ACT)') pt V; Anti-Discrimination Act 1992 (NT) ('ADA (NT') s 22.
3 Harassment on specified grounds has been expressly prohibited under the following
statutes: Disability Discrimination Act 1992 (Cth) pt 2; EOA (WA) pt III div 3A; ADA (NT) s
20(1)(b); ADA (Tas) s 17(1). Note that harassing behaviour has been recognised as a form of
direct discrimination: Oyekanmi v National Forge Operations Pty Ltd [1996] EOC ¶92–797;
Rugema v Gadsten Pty Ltd [1997] EOC ¶92–887 (the ground of race) and Daniels v Hunter
Water Board [1994] EOC ¶92–626 (the ground of homosexuality). In addition, several
jurisdictions also proscribe racial hatred and acts of vilification on a range of grounds.
These provisions prohibit types of harassing behaviour. See eg, Racial Discrimination Act
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Federal Law Review
Volume 31
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comprehensive history of statutory definition. Given the extent of this history, and in
light of these developments regarding other forms of harassment, it seems timely to
revisit the development of sexual harassment as a separate legal claim and, in
particular, to examine the legislative reforms through which it has been defined as a
legal wrong.
The Commonwealth Parliament was the first in Australia to enact legislation that
explicitly named sexual harassment as a form of actionable wrong under anti-
discrimination legislation. This comment traces the history and development of the
definition of sexual harassment in the Sex Discrimination Act 1984 (Cth) ('SDA'). It seeks
to crystallise the central concerns of the many critiques that have been made of the
definition, particularly those raised by feminist commentators. Part I offers a brief
consideration of the social and legal context for the enactment of the sexual harassment
provisions in the SDA. It commences by considering Australian developments
concerning unwanted sexual conduct in the workplace prior to the enactment of the
legislation in 1984. It then describes some of the major international and national
influences that contributed to the creation of a legal climate conducive to the
enactment of a prohibition on sexual harassment. This discussion reviews the
significance and limitations of the decision in O'Callaghan v Loder,4 the first Australian
adjudicative recognition of sexual harassment in an anti-discrimination context. It
concludes with an examination of those elements of sexual harassment, as it was
initially defined under s 28(3) of the SDA, that attracted the most attention of
commentators. In 1992, this definition of sexual harassment was redrafted in a manner
that addressed a number of these concerns. Part II of the comment explores the
significance of these amendments by synthesising the critical evaluations that continue
to be made of this current definition. These critiques can be reduced to four specific
elements of the definition: 'unwelcome conduct of a sexual nature'; 'in relation to';
'reasonable person'; and 'offended, humiliated, or intimidated'.
Sexual harassment law has offered Australian women an invaluable means of
redress for the harms that they have experienced, and continue to experience, in the
public sphere (particularly in the workplace).5 It has also engendered a plethora of
educational and policy campaigns designed to highlight the unacceptable nature of
such harassment and, in turn, to reduce its prevalence. Despite these achievements, the
current legislative definitions of sexual harassment continue to attract significant
critical evaluation. In surveying the history of the Commonwealth definition of sexual
harassment, and its major critiques, the comment seeks to provide an informed
account from which to debate the future direction of harassment law in Australia.
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1975 (Cth) pt IIA; ADA (NSW) pt 2 div 3A, pt 3A div 5, pt 4C div 4, pt 4F; Racial and
Religious Tolerance Act 2001 (Vic).
4
[1984] EOC ¶92–023.
5
In recognition of the fact that the vast majority of sexual harassment complainants are
women, this comment will use the pronoun 'she' to refer to complainants. The pronoun 'he'
will be used, as appropriate, to refer to the alleged perpetrator, or respondent.
2003
Defining Sexual Harassment
197
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PART I: THE HISTORY OF SEXUAL HARASSMENT
(i)
The international and Australian situation in the 1970s
The impetus to introduce sexual harassment provisions as part of Australian sex
discrimination legislation needs to be understood as part of a broader international
movement for recognition of the human rights of women.6 This movement involved a
number of distinct influences. In the United States, for instance, discrimination
legislation was introduced in the early 1970s.7 Although the term sexual harassment is
said to have come into popular usage in the United States shortly afterwards,8 it was
not until later in the decade that there was a tentative acceptance of some forms of
sexual harassment within sex discrimination law.9 In 1979, Catharine MacKinnon
proposed a theoretical understanding of the term in her book, Sexual Harassment of
Working Women.10 MacKinnon's work did much to highlight the widespread and
gendered nature of sexual harassment. She estimated that, at that time, up to seven out
of ten women (in the United States) could expect to be affected by some sort of sexual
harassment during their working lives.11 Moreover, she argued that sexual harassment
was not a form of misdirected sexual desire but rather was an injury to women arising
from the systemic social inequality between men and women. For MacKinnon, the
most appropriate way to respond to sexual harassment was through the introduction
of separate statutory provisions. Such provisions, she suggested, would be preferable
to the individualistic, 'disabling (and cloying) moralism' of existing tort law, which, at
the time, was the primary avenue of complaint regarding unwanted sexual conduct in
United States workplaces.12
In tune with these developments in the United States, women's organisations in
Australia, such as the Women's Electoral Lobby, began pressing for legal and social
recognition of sex discrimination from the early 1970s.13 This movement was strongly
influenced by Australia's ratification of two key international conventions.14 In 1973
Australia ratified the ILO's Discrimination (Employment and Occupation) Convention
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6
There is some evidence of the existence of complaints about unwanted sexual conduct in
Australian workplaces prior to the introduction of the Commonwealth sexual harassment
statutory provisions. For example, Bacchi and Jose describe a formal complaint made in
1912 by an assistant schoolteacher in South Australia that the school inspector had 'insulted
her gravely and indecently assaulted her'. The Education Department dismissed the
inspector and this dismissal was subsequently upheld by a Board of Enquiry: Carol Bacchi
and Jim Jose, 'Dealing with Sexual Harassment: Persuade, Discipline or Punish?' (1994) 10
Australian Journal of Law and Society 1, 2.
7 The
Equal Employment Opportunity Act of 1972 inserted Title VII into the Civil Rights Act of
1964.
8
Bacchi and Jose, above n 6, note 1.
9 See,
eg
Williams v Saxbe 413 F Supp 654 (DDC 1976); Barnes v Castle 561 F.2d 983 (DC Cir
1977) and the other cases discussed in Catharine MacKinnon, Sexual Harassment of Working
Women: A Case of Sex Discrimination (1979), Appendix B.
10 MacKinnon, above n 9.
11 Ibid 26, citing several United States studies.
12
Ibid 172.
13 Jocelynne Scutt, 'In Pursuit of Equality:...
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