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Mason, Gail; Chapman, Anna --- "Defining Sexual Harassment: A History of the Commonwealth Legislation and its Critiques" [2003] FedLawRw 6; (2003) 31(1) Federal Law Review 195

[∗] 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 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.

[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 [1977] USCADC 282; 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: Women and Legal Thought 1788–1984' in Jacqueline Goodnow and Carole Pateman (eds) Women, Social Science and Public Policy (1985) 116, 122–4; Peter Bailey, Human Rights: Australia in an International Context (1990) 153.

[14] Bailey, above n 13, 152–153, discussing 'CEDAW' (below n 16).

[15] Opened for signature 25 June 1958, 362 UNTS 31 (entered into force 15 June 1960).

[16] Opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981).

[17] Bailey, above n 13, 152.

[18] Scutt, above n 13, 122–4. A committee in the Northern Territory was established later in 1979.

[19] National Committee on Discrimination in Employment and Occupation, Towards Equal Opportunity in Employment: First Annual Report 1973–4 (1975) 3.

[20] Scutt, above n 13, 122; National Committee on Discrimination in Employment and Occupation, above n 19, 23.

[21] The state committees dealt with complaints relating to the grounds specified in ILO Convention 111 (race, colour, sex, religion, political opinion, national extraction and social origin) in addition to other grounds: National Committee on Discrimination in Employment and Occupation, above n 19, 3.

[22] Tabling in the Commonwealth Parliament was at the discretion of the relevant Minister: National Committee on Discrimination in Employment and Occupation, Second Annual Report 1974–75 (1976) 4. Senator Susan Ryan expressed the view that this mechanism for tabling was in practice useless as it had, to her knowledge, never been used: Commonwealth, Parliamentary Debates, Senate, 11 June 1981, 3043 (Susan Ryan).

[23] Simon Balderstone, 'Sex Made a Ground of Complaint', The Age (Melbourne), 21 March 1981, 1.

[24] National Committee on Discrimination in Employment and Occupation, Tenth Annual Report 1982–83 (1983) 47.

[25] Ibid.

[26] Sex Discrimination Act 1975 (SA).

[27] ADA (NSW); Equal Opportunity Act 1977 (Vic).

[28] Commissioner for Equal Opportunity (Victoria), Second Annual Report 1978–1979 (1979) 17–18.

[29] Ibid 17.

[30] Ibid.

[31] Commissioner for Equal Opportunity (Victoria), Third Annual Report 1979–1980 (1980) 53. The Equal Opportunity Bulletin was dated October 1980. It stated that its purpose was to assist employers to identify and counteract the problem of sexual harassment more readily.

[32] Ibid.

[33] Ibid.

[34] Ibid 54.

[35] Ibid.

[36] Commissioner for Equal Opportunity (Victoria), Fifth Annual Report 1981–1982 (1982) 14–18.

[37] Ibid 17.

[38] Anti-Discrimination Board (NSW), Report for the Year Ended 30 June 1980 (1980) 15. See also Linda Rubinstein, 'Dominance Eroticised: Sexual Harassment of Working Women' in Margaret Bevege, Margaret James and Carmel Shute (eds), Worth Her Salt: Women at Work in Australia (1982) 163, 171.

[39] Anti-Discrimination Board (NSW), above n 38, 15.

[40] Ibid.

[41] Ibid 79–80.

[42] Ibid 79.

[43] The policy is contained in Anti-Discrimination Board (NSW), Fourth Annual Report (1981) 81–83.

[44] Ibid 83.

[45] Susan Tiffin, 'Against the Odds: Fighting Sexual Harassment Under Anti-Discrimination Legislation' (1984) 27 Refractory Girl 7, 12 n 3; Rubinstein, above n 38, 165.

[46] See, eg, Tiffin, above n 45, 12 note 3; Rubinstein, above n 38, 165–6.

[47] [1984] EOC 92–022, 92–023, 92–024.

[48] O'Callaghan's complaint read as follows: 'I wish to make a complaint of discrimination based on sex which is against the Anti-Discrimination Act. I am employed as a lift attendant at the Department of Main Roads and I have been sexually harassed by the Commissioner, Mr Loder.' See O'Callaghan v Loder [1984] EOC 92–023, 75, 496.

[49] O'Callaghan v Loder [1984] EOC 92–024, 75, 510.

[50] O'Callaghan v Loder [1984] EOC 92–022. See Tiffin, above n 45, 8–9.

[51] O'Callaghan v Loder [1984] EOC 92–024, 75, 513.

[52] Margaret Thornton, 'The Legitimation of Sexual Harassment' (1984) 18 Scarlet Woman 2, 3. The incident is also noted by Tiffin, above n 45, 9, 10 and Scutt, above n 13, 128. Notably, the details of the incident are not referred to in the decision of the Equal Opportunity Tribunal: O'Callaghan v Loder [1984] EOC 92–024, 75, 515.

[53] O'Callaghan v Loder [1984] EOC 92–024, 75, 513.

[54] Ibid 75, 515.

[55] Ibid.

[56] See, eg, Irene Moss and Margaret Newton, 'The Anti-Discrimination Board of New South Wales: Eight Years of Achievement in a New Area of Law' (1986) 60 Australian Law Journal 162, 166; Anne Riches, 'Discrimination and Sexual Harassment: Recent Developments' (1983) Australian Current Law 36063, 3065. Scutt was more ambivalent about whether the decision was a breakthrough: Scutt, above n 13, 126. See also Tiffin, above n 45, 11; O'Callaghan v Loder [1984] EOC 92–024, 75, 517.

[57] The relevant provisions in the statute at that time were ss 24 and 25 of the Anti-Discrimination Act 1977 (NSW). Determinations in other jurisdictions subsequently confirmed the view of Mathews J that sexual harassment constitutes sex discrimination: R v Equal Opportunity Board; Ex parte Burns [1985] VicRp 31; [1985] VR 317; Lyon v Godley [1990] EOC 92–287.

[58] O'Callaghan v Loder [1984] EOC 92–023, 75, 497.

[59] Ibid 75, 505. The tribunal described this idea as being similar to the developments in United States cases 'where the pattern of sexual harassment inflicted on the employee resulted in his or her being subjected to a hostile or demeaning work environment'. According to the tribunal, in such situations, either the unwelcome sexual conduct, or the hostile atmosphere created by it, can become such a feature of the employment that it can constitute a term or condition of it: ibid.

[60] Ibid 75, 506. In addition, according to Mathews J, sexual harassment accompanied by the threat of adverse employment consequences, or deprivation of job opportunities, are sufficient to constitute unlawful sex discrimination: ibid 75, 506–75, 507. Jenny Morgan credits the tribunal with recognising two broadly identified forms of sexual harassment: quid pro quo harassment (sexual proposition accompanied by employment threat) and hostile work environment harassment (where a sexually hostile environment becomes a term or condition of employment): Jenny Morgan, 'Sexual Harassment: Where Did it Go in 1995?' in Jenna Mead (ed), Bodyjamming: Sexual Harassment, Feminism and Public Life (1997) 101, 105.

[61] O'Callaghan v Loder [1984] EOC 92–023, 75, 506.

[62] Ibid 75, 505.

[63] Ibid 75, 507.

[64] Ibid 75, 506.

[65] O'Callaghan v Loder (1984) EOC 92–024, 75, 514.

[66] Ibid 75, 514.

[67] Ibid 75, 516.

[68] Thornton, above n 52, 3.

[69] Ibid. See also Regina Graycar and Jenny Morgan, The Hidden Gender of Law (1990) 361. In her seminal work MacKinnon above n 9, 47–55 describes the range of responses that women report experiencing as a result of sexual harassment in their workplace. These include feelings of humiliation, degradation, alienation, guilt, a sense of hopelessness and emotional exhaustion,.

[70] Scutt, above n 13, 128. Scutt interpreted the tribunal's finding in O'Callaghan on the requirement of unwelcomeness as introducing a criminal standard of proof (beyond reasonable doubt) into the civil arena of anti-discrimination law. Scutt wrote that in effect 'the onus apparently placed upon the complainant is that of objecting so strongly to the activity that the respondent is in no doubt that his attentions are unwanted (and the judgment seems even to exclude recklessness on his part)': at 127. Ian Barker makes a similar point that the concepts of knowledge and intention are more appropriately part of the criminal law, and not anti-discrimination jurisdictions: Ian Barker, 'Discrimination: Some Legal Issues' (1985) 51 Canberra Bulletin of Public Administration 51, 55.

[71] Scutt, above n 13, 128.

[72] Ibid.

[73] Helen Mills, 'Sexual Harassment as Sex Discrimination' (1984) 9 Legal Services Bulletin 5, 6–7. Barker questions why the knowledge of the alleged harasser is of any relevance to a claim of sex discrimination: Barker, above n 70, 55.

[74] Mills, above n 73, 6.

[75] Thornton, above n 52, 3.

[76] Scutt, above n 13, 129. Interestingly, Justice Marcus Einfeld (then President of the Human Rights and Equal Opportunity Commission and Justice of the Federal Court of Australia) developed a similar argument a few years later to the effect that the Sex Discrimination Act 1984 (Cth) ought to be amended to deem proved sexual conduct to be unlawful unless the evidence satisfies the tribunal to the contrary: Justice Marcus Einfeld, 'Sexual Harassment' (1988–89) 21 Australian Journal of Forensic Sciences 43, 56.

[77] O'Callaghan v Loder [1984] EOC 92–023, 75, 497.

[78] Tiffin, above n 45, 9–10. Scutt above n 13, 128 also construed power and gender in this way.

[79] Jenny Morgan, 'Sexual Harassment and the Public/Private Dichotomy' in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) 89, 101–2.

[80] SDA s 28(3)(a), (b) (subsequently repealed).

[81] SDA s 28(1)(b) (subsequently repealed).

[82] NSW Anti-Discrimination Board, Seventh Annual Report: 1983–1984 (1984) 92.

[83] Thornton, above n 52, 4.

[84] Sex Discrimination Bill 1981 (Cth). This Bill followed Australia becoming a signatory to CEDAW in 1980. See Commonwealth, Parliamentary Debates, Senate, 26 November 1981, 2714 (Susan Ryan) (second reading speech).

[85] Sex Discrimination Bill 1983 (Cth).

[86] Thornton notes that the legislation was being drafted at the time when O'Callaghan was handed down: Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) 59.

[87] The parliamentary debate relating to the SDA was (at 1996) the longest recorded in federal parliament: Virginia Triolli, Generation f: Sex Power and the Young Feminist (1996) 78.

[88] Thornton, 'Anti-Discrimination Legislation in Australia' above n 86, 59.

[89] Commonwealth, Parliamentary Debates, Senate, 2 June 1983, 1187 (Susan Ryan) (second reading speech).

[90] Graycar and Morgan, above n 69, 357–8.

[91] SDA s 28(3) (subsequently amended). The words 'conduct of a sexual nature' included making, to, or in the presence of, a person, a statement of a sexual nature concerning that person, whether the statement was made orally or in writing: SDA s 28(4).

[92] SDA s 28(3)(a), (b) (subsequently repealed).

[93] SDA s 28(1), (2) (subsequently repealed).

[94] SDA s 106. These provisions have encouraged employers to proactively address the issue of sexual harassment through developing their own policies to deal with the problem. See further, Christine Parker, 'Public Rights in Private Government: Corporate Compliance with Sexual Harassment Legislation' [1999] AUJlHRights 7; (1999) 5 Australian Journal of Human Rights 159.

[95] SDA s 29 (subsequently repealed). This covered harassment by staff members of students and prospective students. It did not, however, cover harassment perpetrated by students against other students or staff members.

[96] SDA s 28(3) (subsequently repealed). See further, Einfeld, above n 76, 51.

[97] Justice Einfeld in Bennett v Everitt [1988] EOC 92–244, 77, 278 drew on the following dictionary meanings of harass: the Shorter Oxford Dictionary defined 'harass' as 'to trouble or vex by repeated attacks' and the Macquarie Dictionary defined harass as 'to disturb persistently; to torment'.

[98] Hall v Sheiban [1988] EOC 92–227, 77, 146–77, 147. For further discussion of this decision and the subsequent decision in this case, see Jenny Morgan, 'Sexual Harassment: One Man's View' (1988) 13 Legal Service Bulletin 157 and Jenny Morgan, 'Pre-employment Interviews, Sexual Harassment and Discrimination' (1989) 2 Australian Journal of Labour Law 276.

[99] Gabriel Moens expressed concern that the potential under the SDA for a single act to constitute sexual harassment disregarded the need for an intention to harass, which he thought 'removed an important yardstick by which to measure the validity' of a complaint. He believed it necessary to examine intention in order to measure the compatibility of the conduct with, what he described as, ' the nature of male sexuality': Gabriel Moens, 'Sexual Harassment and the Sex Discrimination Act 1984' (1990) 6 Policy 25, 27.

[100] Morgan, 'Sexual Harassment: One Man's View', above n 98, 158.

[101] Ibid 158–159.

[102] Hall v A & A Sheiban Pty Ltd [1989] EOC 92–250, 77, 389 (Lockhart J), 77, 402 (Wilcox J), 77, 430 (French J). In a subsequent decision Einfeld J moved away from his earlier understanding of the need for repetition: Bennett v Everitt [1988] EOC 92–244, 77, 278. See also Einfeld, above n 76, 51.

[103] Hall v A & A Sheiban Pty Ltd [1989] EOC 92–250, 77, 389 (Lockhart J).

[104] SDA s 28(3)(a) and (b) (subsequently repealed). On this shift in perspective from the harasser to the complainant, see Graycar and Morgan, above n 69, 362; Morgan, 'Sexual Harassment and the Public/Private Dichotomy, above n 79, 92; Mills, above n 73, 8. This shift in perspective is a feature of the SDA that Moens finds troubling: Moens, above n 99, 27.

[105] Lauren Fahey, Law and Feminism: Focusing on Sexual Harassment (MA Minor Thesis, University of Melbourne, 1994) 36–37; Mills, above n 73, 7–8.

[106] Mills, above n 73, 7–8.

[107] Hall v Sheiban [1988] EOC 92–227, 77, 135, 77, 148.

[108] Hall v A & A Sheiban Pty Ltd [1989] EOC 92–250, 77, 406 (Wilcox J). See also Morgan, 'Pre-employment Interviews, Sexual Harassment and Discrimination', above n 98, 279.

[109] Graycar and Morgan, above n 69, 353. Like the terminology of 'quid pro quo' sexual harassment—which refers to situations where employment (ie, promotion or security) is made contingent upon the acceptance of unwanted sexual conduct—'hostile work environment' sexual harassment has its origins in the United States. Both forms of sexual harassment have now been successfully litigated in Australia: Regina Graycar and Jenny Morgan, The Hidden Gender of Law (2nd edn, 2002) 390.

[110] Morgan, 'Sexual Harassment: Where Did it Go in 1995?', above n 60, 106; Chris Ronalds, Discrimination Law and Practice (1998) 74.

[111] Freestone v Kozma [1989] EOC 92–249, 77, 377; G v R and Department of Health Housing and Community Services (Unreported, HREOC, 17 September 1993). However the position remains unclear—see the discussion below under the subheading in Part II, 'ii) In Relation To'.

[112] The Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) amended the SDA. See n 120 below.

[113] House of Representatives Standing Committee on Legal and Constitutional Affairs, Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (1992).

[114] Hilary Astor, 'Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia' (1993) 6 Australian Journal of Labour Law 74.

[115] House of Representatives Standing Committee on Legal and Constitutional Affairs, above n 113, 262 (Recommendation 65).

[116] Ibid.

[117] Ibid.

[118] Ibid.

[119] Discrimination Act 1991 (ACT) s 58: '[A] person subjects another person to sexual harassment if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person or engages in other unwelcome conduct of a sexual nature in circumstances in which the other person reasonably feels offended, humiliated or intimidated.'

[120] The Hon Paul Keating, Prime Minister, and the Hon Wendy Fatin, Minister for the Arts and Territories and Minister Assisting the Prime Minister for the Status of Women, Government Response to Half Way to Equal—the Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia by the House of Representatives Standing Committee on Legal and Constitutional Affairs (1992) 107. The Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) repealed the existing s 28 and replaced it with a new s 28A. In addition, ss 28B to 28L were inserted into the SDA to expand the field of operation of the sexual harassment proscription to include, ie, sexual harassment of staff by students, sexual harassment of one partner by another and sexual harassment of one workplace participant by another, whether or not they shared the same employer. See, further, Therese MacDermott, 'Amendments to the Sex Discrimination Act 1984 (Cth)' (1994) 7 Australian Journal of Labour Law 95.

[121] Compare the previous SDA s 28(3)(a) and (b) with the current s 28A(1)(a) and (b). Some state jurisdictions retain a requirement for some other work-related disadvantage, or a reasonable belief of disadvantage, in addition to the unwelcome sexual conduct: EOA (WA) s 24(3). See, further, MacDermott, 'Amendments to the Sex Discrimination Act 1984 (Cth)', above n 120, 95–96.

[122] Meredith Osborne, Sexual Harassment—A Code of Practice (1996) 24 (Human Rights and Equal Opportunity Commission). The purpose of this code is to provide practical guidance on the obligations contained in the SDA. Although the code is not legally binding as such, it does contain a distillation of many established principles on sexual harassment. It is likely that an employer whose actions fell below the level set out in the code would be found to be in contravention of the SDA: Ronalds, above n 110, 75.

[123] O'Callaghan v Loder [1984] EOC 92–022, 92–023, 92–024.

[124] The Human Rights and Equal Opportunity Commission Code summarises the current (at 1996) case law understanding of the requirement of knowledge by the perpetrator:

A complaint ... should not be dismissed just because the complainant did not tell the harasser that their behaviour was unwelcome. The case law takes into account the reasons why someone may feel unable to confront a harasser directly. Factors which might be relevant include the youth and inexperience of the complainant, fear of reprisals and the nature of the power relationship between the parties. However, even if the complainant didn't say anything to the harasser there still needs to be some indication from their reaction or the surrounding circumstances that the conduct was unwelcome.

Osborne, above n 122, 25-6. For a discussion of the kinds of factors that may be taken into account by tribunals in determining unwelcomeness, see Patricia Easteal, 'A Kaleidoscope View of Law and Culture: The Australian Sex Discrimination Act 1984' (2001) 29 International Journal of the Sociology of Law 51.

[125] The previous inclusive definition of 'conduct of a sexual nature' referred to a statement of a sexual nature 'concerning' the person to whom it was said, or in whose presence it was said. The amended definition does not refer to the statement being about the person to whom it was said, or in whose presence it was said. It merely refers to a statement of a sexual nature. Compare the previous SDA s 28(4) with the current s 28A(2). This alteration in wording has relevance to the issue of sexual harassment in the form of a hostile work environment, discussed below under subheading Part II, (ii).

[126] Attempts at a closer (inclusive) articulation date back to O'Callaghan v Loder [1984] EOC 92–023, 75, 505. More recently, see Osborne, above n 122, 35-8 (as part of the recommended sexual harassment policy check list). Interestingly, the ADA (Qld) s 119 includes a list of examples of sexual harassment.

[127] See, Osborne, above n 122, 26. An example is provided in the case of Djokic v Sinclair [1994] EOC 92–643. Although in this case, the Human Rights and Equal Opportunity Commission was not satisfied that deliberate touching in a sexual manner had occurred, it did find that the perpetrator's 'general demeanour towards the complainant over a sustained period reflected a hostility based on her sex that was oppressive to her and constituted sexual harassment.' By contrast, see Hall, Oliver and Reid v Sheiban [1988] EOC 92–227: at 77, 419 77, 146 (where the respondent's conduct was found to lack the element of 'true sexuality'). This decision was overturned on appeal: Hall v A & A Sheiban Pty Ltd [1989] EOC 92–250.

[128] Margaret Thornton, 'Feminism and the Contradictions of Law Reform' (1991) 19 International Journal of the Sociology of Law 453, 466. Indeed Thornton argues that all women in the paid workforce are subjected to some degree of harassment on account of their sex. See also Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (1996) 262.

[129] Hall v Sheiban [1988] EOC 92–227.

[130] Hall v Sheiban [1988] EOC 92–227, 77, 149–77, 151. See also Morgan, 'Sexual Harassment: One Man's View', above n 98, 159–160; Morgan, 'Pre-employment Interviews, Sexual Harassment and Discrimination', above n 98, 276, 280. Note that the decision of the Human Rights and Equal Opportunity Commission was overturned on appeal: Hall v A & A Sheiban Pty Ltd [1989] EOC 92–250.

[131] See Thornton, 'Feminism and the Contradictions of Law Reform', above n 128, 465. Frances Olsen attributes the comparative success of sexual harassment claims to an unconscious invocation of the public/private distinction: Frances Olsen, 'The Family and the Market: A Study of Ideology and Legal Reform' (1983) 96 Harvard Law Review 1497, 1551 n 207.

[132] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 97.

[133] Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia, above n 86, 59.

[134] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 97.

[135] On its face, the definition of sexual harassment in the ADA (Qld) covers sexual harassment in all areas of life, including on the street. Section 118 of the ADA (Qld) states simply that '[a] person must not sexually harass another person'. With no restrictions on areas or relationships covered, this law has the potential to render unlawful sexual harassment that occurs anywhere from the home to public spaces, even when the harasser is a stranger to the complainant. Morgan has expressed the view that the gender neutrality of the Queensland provision, compounded by its failure to be explicit about the increased parameters of protection, 'may well lead to the legislation being little used in practice for this kind of harm': Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 99–100. Indeed, at June 2001, it appeared that no complaints had gone to a public hearing outside the areas of employment, accommodation and education.

[136] Thornton, 'Feminism and the Contradictions of Law Reform', above n 128, 464–65. See also, Margaret Thornton, 'The Public/Private Dichotomy: Gendered and Discriminatory', (1991) 18 Journal of Law and Society 448.

[137] Jan Crosthwaite and Graham Priest, 'The Definition of Sexual Harassment' (1996) 74 Australasian Journal of Philosophy 66, 70 (emphases in the original).

[138] Crosthwaite and Priest discuss some paradigm examples of sexual harassment as: 1) The use of a position of power to secure sexual access; 2) Where sexual access is sought without institutional power, by for example a co-worker or a fellow student; 3) Where an harasser forces an awareness onto the complainant of his presence and her vulnerability to his sexual appraisal (ie, leering and wolf whistles); and, 4) Telling 'dirty' jokes or displaying sexually explicit posterswhere there may be no intention on part of the harasser to have any effect on the complainant: ibid 67–9.

[139] MacKinnon, above n 9.

[140] Crosthwaite and Priest, above n 137, 72.

[141] Iddo Landau, 'On the Definition of Sexual Harassment' (1999) 77 Australasian Journal of Philosophy 216, 216–17, 220. Some forms of male to male harassment would fall within the definition of sexual harassment put forward by Crosthwaite and Priest, above n 137, 76–9.

[142] Landau, above n 141, 217.

[143] Crosthwaite and Priest, above n 137, 70.

[144] [1985] EOC 92–127.

[145] Ibid 76,280, 76,282, 76,289. Women have been particularly vulnerable to hostile working environments when they work in non-traditional, male dominated. workplaces. See Therese MacDermott, 'The Duty to Provide a Harassment-Free Work Environment' (1995) 37 Journal of Industrial Relations 495, 496; Osborne, above n 122, 29.

[146] Hill v Water Resources Commission [1985] EOC 92–127, 76,282–76,285. In addition, Hill's authority when acting in a supervisory position was continuously undermined. Her supervisees were encouraged by a senior manager to bypass her with their requests for days off on flexitime leave: 76,290. In addition, Hill was later demoted by the respondent and moved into the respondent's equal employment opportunity section. The tribunal found that this change in responsibilities constituted unlawful sex discrimination: at 76, 286–7.

[147] Ibid 76,283.

[148] Ibid 76,290.

[149] Of course at this time Hill's complaint could only be argued as direct sex discrimination. There were no separate statutory provisions relating to sexual harassment at this time, either federally or under the ADA (NSW), which is the statute under which Hill brought her complaint.

[150] Hill v Water Resources Commission [1985] EOC 92–127, 76, 280, 76, 284, 76, 290.

[151] Horne v Press Clough Joint Venture [1994] EOC 92–591.

[152] Ibid. The case was argued, and decided, under the sex discrimination provisions in the EOA (WA). The sexual harassment provisions in the EOA (WA), like the original SDA definition of sexual harassment, require a complainant to show either some additional work-related detriment, or a reasonable belief of such detriment. See s 24(3) EOA (WA). It may have been difficult for the complainants in this case to establish this additional aspect.

[153] Ibid 77, 175.

[154] Djokic v Sinclair [1994] EOC 92–643.

[155] Ibid 77, 419. In addition to sexual harassment, Djokic complained of sex and race discrimination.

[156] ADA (Tas) s 17 lists a number of attributes (gender, marital status, pregnancy, breastfeeding, parental status and family responsibilities) on which it is unlawful to harass a person. See generally, Anna Chapman, 'Anti-Discrimination Act 1998 (Tas)' (2000) 13 Australian Journal of Labour Law 183, 188.

[157] MacDermott, 'The Duty to Provide a Harassment-free Work Environment', above n 145, 499. This issue overlaps to some extent with the material discussed below under the heading of 'In Relation To'.

[158] O'Callaghan v Loder [1984] EOC 92–023. See also Bennett v Everitt [1988] EOC 92–244; Bebbington v Dove [1993] EOC 92–543; Freestone v Kozma [1989] EOC 92–249; Hall v Sheiban [1989] EOC 92–250.

[159] SDA (Cth) s 28A(1)(a), (b).

[160] A v B [1991] EOC 92–367.

[161] Ibid 78,532.

[162] MacDermott, 'The Duty to Provide a Harassment-free Work Environment', above n 145, 499. Similarly, sex discrimination provisions might be preferred where the conduct may not satisfy the reasonable person test (discussed below) of sexual harassment: at 499–500.

[163] Additionally, depending on the jurisdiction, a person may lodge a complaint under some other ground such as race, disability or sexuality if the complainant believes that this other ground has also shaped the behaviour of the perpetrator.

[164] Morgan, 'Sexual Harassment and the Public/Public Dichotomy', above n 79, 92.

[165] SDA (Cth) s 28(3)(a) (subsequently repealed).

[166] SDA (Cth) s 28A(1).

[167] MacDermott, 'Amendments to the Sex Discrimination Act 1984 (Cth)', above n 120, 96; Graycar and Morgan, above n 69, 371. Over 80% of complaints under the sexual harassment provisions appear to be made by women: see, ie, Anti-Discrimination Board (NSW), Annual Report 1999–2000 (2000) 24; Equal Opportunity Commission (Victoria), The Way Forward: Annual Report 2000/2001 (2001) 29; Human Rights and Equal Opportunity Commission, Annual Report 1999–2000 (2000) <http://www.hreoc.gov.au/ ?annrep_99_00/index.html> at 14 March 2003.

[168] MacKinnon unmasks law's neutrality, or point-of-viewlessness, to reveal a male standard. In her words, '[M]ale dominance is perhaps the most pervasive and tenacious system of power in history, ... it is metaphysically nearly perfect. Its point of view is the standard for point-of-viewlessness, its particularity the meaning of universality.' Catharine MacKinnon, 'Feminism, Marxism, Method and the State: Towards Feminist Jurisprudence' (1983) 8 Signs: Journal of Women in Culture and Society 635, 638–9. See further, Ngaire Naffine and Rosemary J Owens (eds), Sexing the Subject of Law (1997) pts 1 and 2.

[169] See, for example, Leslie M Kerns, 'A Feminist Perspective: Why Feminists Should Give the Reasonable Woman Standard Another Chance' (2001) 10 Columbia Journal of Gender and Law 195; Caroline Forell and Donna Matthews, A Law of Her Own: The Reasonable Woman as a Measure of Man, (2000); Caroline Forell, 'Essentialism, Empathy and The Reasonable Woman' [1994] University of Illinois Law Review 769; Jeffrey A Gettle, 'Sexual Harassment and the Reasonable Woman Standard: Is it a Viable Solution?'(1993) 31 Duquesne Law Review 841; Caroline Forell, 'Reasonable Woman Standard of Care' [1992] UTasLawRw 1; (1992) 11 University of Tasmania Law Review 1.

[170] Forell and Matthews, above n 169, xvii–xxii.

[171] Rabidue v Osceola Refining Co, [1986] USCA6 1911; 805 F 2d 611 (6th Cir 1986) per Keith J dissenting; Robinson v Jacksonville Shipyards Inc 760 F Supp 1486 (MD Fla 1991), discussed in Forell (1992), above n 169, 8–12. Interestingly, in his comparative study on sexual harassment law, Robert Husbands claims that most countries that include a reasonableness test in their law have adopted a 'reasonable woman' standard: Robert Husbands, 'Sexual Harassment Law in Employment: An International Perspective' (1992) 131 International Labour Review 535, 542.

[172] Hall v Sheiban [1988] EOC 92–227, on appeal Hall v A & A Sheiban Pty Ltd [1989] EOC 92–250. On the outcry that accompanied the decision of Einfeld J, see Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia, above n 86, 60, Morgan 'Sexual Harassment: One Man's View', above n 98; Morgan, 'Pre-employment Interviews, Sexual Harassment and Discrimination', above n 98.

[173] Forell suggests that most male judges would be capable of empathising with how women feel. Forell, 'Reasonable Woman Standard of Care', above n 169, 15.

[174] Morgan, 'Sexual Harassment: One Man's View', above n 98, 159. In the passage from which the quote is taken, Morgan drew on MacKinnon's work (Catherine MacKinnon, Feminism Unmodified (1987)).

[175] See, Bennet v Everitt [1998] EOC 92–244.

[176] On the limitations of a reasonable woman test, see, Stephanie M Wildman, 'Ending Male Privilege: Beyond the Reasonable Woman' (2000) 98 Michigan Law Review 1797 (a review essay on Forell and Matthews, above n 169); Kathryn Abrams, 'The New Jurisprudence of Sexual Harassment' (1998) 83 Cornell Law Review 1169; Kathryn Abrams, 'The Reasonable Woman: Sense and Sensibility in Sexual Harassment Law' [1995] Dissent 48; Sharon J Bittner, 'The Reasonable Woman Standard After Harris v Forklift Systems, Inc: The Debate Rages On' (1994) 16 Women's Rights Law Reporter 127; Naomi R Cahn, 'The Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice' (1992) 77 Cornell Law Review 1398; Nancy S Ehrenreich, 'Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law' (1990) 99 Yale Law Journal 1177; Lucinda Finley, 'A Break in the Silence: Including Women's Issues in a Torts Course' (1989) 1 Yale Journal of Law and Feminism 41.

[177] MacDermott, 'Amendments to the Sex Discrimination Act 1983 (Cth)', above n 120, 96.

[178] This approach is also apparent in the EOA (Vic) s 85(1); ADA (NSW) s 22A; ADA (Qld) s 119; ADA (Tas) s 17(3).

[179] See EOA (SA) s 87(11); DA (ACT) s 58(1). See Tripp v Freeman [1998] SADC 3746 (7 January 1998) (on the EOA (SA)); Re Marshall and Discrimination Commissioner (1998) 52 ALD 361 (under the DA (ACT)).

[180] George Raitt, 'Prevention Better Than Cure: Resolving Sexual Harassment Conflict' (1999) 73 Law Institute Journal 72, 74.

[181] SDA s 28A(1). Interestingly, and in contrast, the ADA (Tas) s 17(3) adds 'insult' and 'ridicule' to the list of emotions that may be considered in that state's definition of sexual harassment. On this Tasmanian provision, see further, Chapman, above n 156.

[182] See, ie, MacKinnon, Sexual Harassment of Working Women, above n 9, 47–55 which was relied on in the Federal Court decision of Hall v A & A Sheiban [1989] EOC 92–250, 77, 398, (Lockhart J); Commissioner for Equal Opportunity (Victoria), above n 36, 17.

[183] Phillip Tahmindjis, 'The New Queensland Anti-Discrimination Act: An Outline' (1992) 22 Queensland Law Society Journal 7, 16 (commenting on the ADA (Qld) test that a reasonable person would have anticipated that the complainant would be offended, humiliated or intimidated).

[184] Olsen, above n 131, 1551.

[185] Margaret Thornton, 'Preface', in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) xvi.

[186] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 92.

[187] Rabidue v Osceola 584 F Supp 419, 423 (District Court, Michigan 1984); Rabidue v Osceola [1986] USCA6 1911; 805 F. 2d 611 (6th Cir 1986), cited in Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 93.

[188] Rabidue v Osceola 584 F Supp 419, 433 (District Court, Michigan) 1984, emphasis in the original, cited in Morgan, 'Sexual Harassment and the Public/Private Dichotomy' above n 79, 93.

[189] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 93, citing MacKinnon, Sexual Harassment of Working Women above n 9, 115.

[190] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 93.

[191] Jeffrey Minson, 'Second Principles of Social Justice' (1992) 10 Law in Context 1, 12, 1 (respectively).

[192] Ibid 12–13. In this category Minson includes standing too close, staring at strangers and inappropriate familiarity: at 13.

[193] Ibid 13. Minson argues that anti-discrimination law could be strengthened by adopting the language of private torts, particularly as a wrong to address 'bodily integrity': at 16–17.

[194] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 108 claims that Minson's formulation appears to transform sexual harassment into 'a matter of lack of consideration or politeness.'.

[195] Ibid 109.

[196] Bacchi and Jose, above n 6, 11.

[197] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 110.

[198] Morgan, 'Sexual Harassment: Where Did it Go in 1995?', above n 60, 111. It is interesting to note that Morgan's emphasis on citizenship and bodily autonomy has parallels with Minson's emphasis on citizenship and bodily integrity.

[199] Drucilla Cornell, The Imaginary Domain: Abortion, Pornography and Sexual Harassment (1995) 10 (emphasis in the original) cited in Morgan, above n 58, 112.

[200] Morgan, 'Sexual Harassment: Where Did it Go in 1995?', above n 60, 112 (emphasis in original). The words 'self-esteem' and 'self-respect' are used by Cornell, above n 199, 8–9.

[201] Cornell, above n 192, 170 cited in Morgan, 'Sexual Harassment: Where Did it Go in 1995?', above n 60, 113 (emphasis in Morgan).

[202] Morgan, 'Sexual Harassment: Where Did it Go in 1995?', above n 60, 113 (emphasis in the original).

[203] Ibid 113–5.

[204] Morgan, 'Sexual Harassment and the Public/Private Dichotomy', above n 79, 94. An example of such sensitivity provided by Morgan is the decision of Spender J in Aldridge v Booth [1988] EOC 92–222, 77, 095: at 95.

[205] [1984] EOC 92–023.

[206] Ibid.

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