Sexual Harassment at Work: Understanding the Positive Duty & How to Prevent It

Why Sexual Harassment Is a Compliance Priority

In Australia, sexual harassment is not just an HR issue—it’s a legal obligation under the Sex Discrimination Act 1984 (Cth) (SDA). Since the positive duty came into force, employers no longer can passively wait to respond. They must proactively prevent and eliminate unlawful sexual harassment, sex discrimination, and hostile environments connected to work.

The risks are high for any business—large or small. Without proper leadership, policy, training, and preventive controls, organisations expose themselves to costly litigation, regulatory action, reputational harm, and legal penalties.

What Sexual Harassment Legally Means

Sexual harassment covers a broad range of unwelcome conduct of a sexual nature that a reasonable person would find offensive, humiliating or intimidating. It includes:

• Unwanted touching, hugs or kisses
• Staring, leering or suggestive looks
• Sexual jokes, innuendos or comments
• Display of sexually explicit images, posters or screensavers
• Unsolicited invitations to dates or sexual advances
• Intrusive questions about a person’s sex life or body
• Sending sexual emails, SMS, or accessing pornographic material

A “hostile workplace” arises when everyday behaviour—sexual banter, crude jokes, or offensive material—makes staff feel unsafe or intimidated. Employers are legally responsible for preventing such environments.

The Positive Duty: Prevention, Not Reaction

Under the SDA, the positive duty requires businesses to actively prevent unlawful conduct—not just react after it happens. This duty applies to all employers, including small businesses and sole traders.

Relevant unlawful conduct includes:

• Sexual harassment in connection with work
• Sex-based harassment
• Hostile workplace environments
• Discrimination on sex in a work context
• Victimisation for lodging complaints

Organizations must shift from reactive investigations to risk-based prevention systems, embedding safe culture and processes before complaints arise.

Lessons from Recent Landmark Cases

The JF v Oishi Case

A waitress was propositioned during off-shift, then physically assaulted by the owner. The incident caused PTSD, panic attacks, anxiety, and depression. The case found both vicarious liability and breach of duty, resulting in a damages award of $140,000 plus aggravated damages.

Magar v Khan (Mad Mex)

This case stands out for its high damages award of $305,000. The court confirmed that sex-based harassment and victimisation under the SDA had occurred. The manager’s inquiries into the employee’s sexual life, comments about clothing, and display of pornographic items were found unlawful.

These cases show that:

• Even one incident can trigger liability
• Employers’ preventive obligations are legally enforceable
• Harm (mental and reputational) matter in damages outcomes
• Vulnerable individuals may have stronger claims under power imbalance allegations

Employer Duties: What You Must Do

To comply with the positive duty, every organisation should:

• Establish clear policies: Provide a sexual harassment policy that defines unacceptable conduct, references SDA, and states zero tolerance. Also include a complaints and investigation procedure with transparent reporting channels.
• Adopt a Code of Conduct: A code of conduct sets behavioural norms. It reinforces expectations and ensures all employees understand their obligations.
• Provide training: Regular compliance training modules should be delivered to all staff and leadership. Training helps translate policy into behaviour, including how to respond to observed harassment.
• Ensure serious handling of complaints: Treat every complaint with urgency and seriousness. Use independent investigators where possible, and document all steps taken.
• Proactively manage risk factors: Anticipate environments of higher risk—after-hours events, social functions, remote work, alcohol, digital communications—and build systems to guard against misconduct.
• Lead by example: Leaders and managers must consistently model respectful conduct. Their behaviour sets culture. Leadership training in harassment prevention is essential.

Key Takeaways

• Sexual harassment, under the SDA, includes many types of unwelcome conduct—even a single incident.
• The positive duty demands prevention, not just reaction.
• Landmark Australian cases show employers are liable when prevention fails.
• Critical controls include clear policies, training, prompt complaint handling, risk management, and leadership example.
• Investing in prevention is far less costly than paying damages or suffering reputational loss.

Equip Your Team with eCompliance Central

At eCompliance Central, we understand that compliance isn’t only about checking boxes—it’s about protecting your people and your reputation. Our Introduction to Workplace Bullying and Harassment course covers harassment, discrimination, complaint handling, and prevention strategies. It’s a perfect complement to strengthening your compliance posture under the SDA.

Don’t wait for a complaint to force you into action. Enrol today and build a respectful, safe, legally compliant workplace.

FAQs

Is the positive duty mandatory for all employers?

Yes. It applies across all sectors, large and small, and obliges proactive prevention of harassment and discrimination.

Can a single incident be actionable?

Absolutely. You don’t need repeated conduct—one serious event can trigger legal liability.

What role does leadership training play?

It equips leaders to identify risk, respond fairly, and model respectful behaviour—essential for a compliant culture.