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Discrimination toolkit

Sexual harassment, vilification, victimisation and public acts threatening or inciting violence

What about sexual harassment?

Sexual harassment is a type of discrimination that is against the law. It is covered by state and federal discrimination laws.

The legal definition of sexual harassment has two parts. What happens to someone has to be both these things before the law will call it sexual harassment:

  • it must be unwelcome sexual behaviour; and
  • it is reasonable that you would feel offended, humiliated or intimidated by the behaviour.

It can be physical, verbal or written. Sexual harassment also has to happen in one of the areas of life covered by discrimination law.

Jasmine walks past a building site every morning on her way to work. The workers wolf-whistle and shout out comments about her body every day. This makes her feel scared and humiliated, and she wants to know if it is sexual harassment.

Yes, it is sexual harassment, but unfortunately it is not covered by discrimination law because it didn’t happen in an area the law covers. Jasmine is not being sexually harassed in her workplace or in any of the other areas of activity covered by discrimination law. But Jasmine could contact someone at the building company and make a complaint about the unwelcome behaviour of the construction workers.

Sexual harassment includes unwanted touching, staring or perving, suggestive comments or jokes, unwanted invitations or requests for sex, sexually intrusive questions, offensive emails or having to look at sexually explicit material.

The law also covers sexual harassment through the use of technologies such as the internet, email, social networking sites and mobile phones.

Sexual harassment can include sexual behaviours that are criminal offences, such as sexual assault, indecent exposure, stalking, and obscene communications. These types of offences should be reported to the police.

The law also says that having to work in an atmosphere with sexual overtones can be sexual harassment, even if it’s not targeted at you directly. For example, if your co-workers in adjoining work stations tell sexual jokes that you can hear and find offensive, that could be sexual harassment.

Although most sexual harassment complaints are made by women, men can also complain about unwelcome sexual behaviour that happens to them.

Musa just got an apprenticeship as a motor mechanic. One of his new workmates, Jack, decides that Musa needs to be “initiated” into the workplace. He tries to pull down Musa‘s shorts when he walks past, gropes him from behind when Musa is at the workbench and leaves pornographic magazines in his bag. Jack also sends a picture of his girlfriend’s breasts to Musa’s mobile phone. Musa is scared, embarrassed and humiliated by this behaviour. He can make a sexual harassment complaint in employment against Jack and the company as well.

Sexual harassment is not about anything that happens when two people are attracted to each other, and it’s not about mutual flirting. It is about sexual behaviour that you don’t want and didn’t invite.

What is vilification?

Vilification is when someone says or does something in public that could make other people ridicule, hate or have serious contempt for a particular group of people.

The Anti-Discrimination Act (NSW) says that the following types of vilification are against the law:

  • vilification of people who are gay, lesbian or transgender;
  • vilification of people with HIV/AIDS; and
  • vilification of racial groups.

Here are some examples of vilification:

  • A neighbour of a same-sex couple stands in the common area of their unit block and yells out “Disgusting faggots – you’re going to burn in hell” (homosexual vilification).
  • Writing and handing out pamphlets, or making a speech at a rally or on the radio that says “Arabs are terrorists and the government should deport them” (racial vilification).
  • Public broadcasts (such as at a rally or on radio) that ridicule or try to make listeners hate people from a particular ethnic group or people who are gay, lesbian, transgender or living with HIV/AIDS.

What is racial hatred?

Racial hatred is similar to racial vilification but it can be easier to prove. It happens when someone says or does something in public that could  “offend, insult, humiliate or intimidate a person” because of their race, colour or national or ethnic origin. This can include things put on the internet. Racial hatred is against the law under the Racial Discrimination Act.

What are public acts that threaten or incite violence?

In NSW if someone does a public act that threatens or incites violence against another person or a group of people because of their:

  • Race
  • Religion
  • Sexual orientation
  • Gender identity
  • Intersex status
  • HIV/AIDS status

they are guilty of an offence under the criminal law.

“Inciting violence” means saying or doing things that urge other people to do acts of violence.

A “public act” includes any way of communicating to the public. It includes:

  • Speaking, writing, displaying notices, playing recorded material, broadcasting.
  • Social media and other electronic ways of communicating.
  • Any other acts the public can see. For example, actions, gestures, wearing or displaying clothing, signs, flags, emblems and insignia.
  • Spreading or sending anything to the public.

If you see someone else being threatened with violence because they have one of the those characteristics, you should report it to the police.

You can report this to the police by phone, or by going to your nearest police station. See Useful contacts for contact details.

What is victimisation?

Victimisation is when someone punishes you or treats you badly because:

  • you have complained about discrimination or harassment; or
  • they think you are going to complain about discrimination or harassment; or
  • you have helped or are going to help someone with a discrimination or harassment complaint (you may be going to give evidence for them in court, for instance).

Victimisation is illegal under discrimination law. If you think you have been victimised, you might be able to make a complaint under discrimination law.

Here are some examples of victimisation:

  • You make a sexual harassment complaint under discrimination law and your employer fires you after they find out you have made the complaint.
  • You complain to your boss that another worker is saying racist things about you and you get moved to a lower-level position.
  • You try to rent a flat and the agent says, “We don’t rent to people in their early twenties. They’re too unreliable.” You say, “That’s not fair. I’m going to take this further.” The agent then tells you you’ve been blacklisted.

If you ticked a box in Step 1 and a box in Step 2, you could have a discrimination complaint. Now move on to Step 3 in Exceptions and exemptions.