There are a number of different ways that an employer may be held liable under legislation for workplace sexual harassment. This includes:
(a) Personal liability
Employers, individual managers and employees are liable for their own acts of sexual harassment. This is known as ‘personal liability’.
An employer may be found personally liable for sexual harassment if he or she made an unwelcome sexual advance, unwelcome request for sexual favours or engaged in other unwelcome conduct of a sexual nature in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
(b) Accessory liability
Employers may be liable if they cause, instruct, induce, aid or permit another person to engage in sexual harassment. This is known as accessory or ancillary liability.
An employer is likely to have accessory or ancillary liability for sexual harassment if it was aware or should have been aware that sexual harassment was occurring or there was a real possibility that sexual harassment was occurring and it failed to act.
In order to be held liable as an accessory to sexual harassment, an employer must have contributed to the sexual harassment either knowingly, recklessly or through willful blindness.
(c) Vicarious liability
Employers can be held liable for sexual harassment committed by their employees in connection with their employment. This is known as vicarious liability.
Employers can only be held vicariously liable for sexual harassment if there is an employment or agency relationship between the organisation and the person who was found to have committed the harassment.
An employer may be found vicariously liable for sexual harassment committed by one of their employees or agents if they failed to take ‘all reasonable steps’ to prevent the sexual harassment from occurring.
It is unlawful to victimise a person if he or she has taken (or proposes to take) action in relation to a discrimination claim. Victimisation includes subjecting or threatening to subject another person to detriment in the workplace. The penalty for victimisation is a fine and/or three months’ imprisonment in the case of a natural person and a fine in the case of a body corporate.