Employment Law: Sexual Harassment and Discrimination at Workplace

This article discusses the laws related to sexual harassment and discrimination at workplace in Australia. It covers the rules, issues, and application of Equal Opportunity Act, 2010(Cth) in two different cases. The first case is related to sexual harassment where the conduct of Lewis was considered as sexual harassment as it meets out with all the required criteria. The second case is related to discrimination where Lewis was conducting indirect discrimination with Megan by doing improper allocation of task among employees.

2018
Law of Employment
Student’s Name

Employment Law 1
Contents
Question 1........................................................................................................................................2
Issues............................................................................................................................................2
Rules.............................................................................................................................................2
Application...................................................................................................................................3
Conclusion...................................................................................................................................4
Question 2........................................................................................................................................5
Issue.............................................................................................................................................5
Rules.............................................................................................................................................5
Application...................................................................................................................................6
Conclusion...................................................................................................................................7
References........................................................................................................................................8

Employment Law 2
Question 1
Issues
In the provided case, Megan has been asked by Lewis for dinner. Instead of being agreed for
offered dinner, she has denied for the same saying she does not has time for outings due to her
family commitments. Further, Lewis has said that he can pay for a babysitter if in exchange;
Megan would be ready to go out with him. He also said with a wink hat they can discuss over
there the issue of allocation of files improperly. Megan returned to her work after doing blush.
Then after she has also ignored many of the further outing requests made by Lewis.
Rules
Section 92 of Equal Opportunity Act, 2010(Cth) covers the provision related to sexual placement
at workplace. This is very crucial and sensitive area of employment law which needs to be take
care on priority. Sexual harassment is a conduct in which a person does an act of physical
intimacy or shows some gesture of sexual nature or makes any sexual statement. Such statement
can be oral as well as verbal (Australian Human Rights Commission, 2018)
It was held in the case Smith v Hehir and Financial Advisors Aust Pty Ltd [2001] QADT 11 that
an action would be traded as sexual harassment when a person who do so, has reasonable believe
and anticipation that by his/her such conduct, the other person would feel provoked and offended
by his/her such act. Here this is to mention that sexual harassment can be done by employer,
employee, partner or any other person at common workplace. Further a sexual act by the said
will be considered as harassment only when it comes out from an unwelcome conduct.
Unwelcome conduct is a conduct where victim does not gives hint or shows any intention to
provoke the harasser (Saunders, 2015).

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It may state here that to prove a conduct of a person as sexual harassment, there must be a
behavior of sexual nature on his/her account. Further such behavior must not be welcomed by the
other person and lastly the first person must have anticipation that his/her conduct shall make the
other one feel offended and humiliated (Lawstuff, 2018).
Apart from the aforesaid three conditions, in order to decide that which conduct are sexual
harassment and which one is not, nature of conduct and it is impact on other party also does
matters. It was held in the case Aleksovski v Australia Asia Aerospace Pty Ltd [2002] FMCA 81
that to offer a meeting in alone due to love or affectation will also be treated as sexual
harassment.
Application
In the provided case Megan has refused the request of dinner made by Lewis by saying that she
has her family commitments and she cannot go with Lewis for this reason. Instead of saying ok,
Lewis further offers her a babysitter for a barter of some quality and intimate time with her. Here
Lewis did not make any wrong touch or physical conduct but made a statement which had an
intention of his sexual aspiration. As per the case Aleksovski v Australia Asia Aerospace Pty Ltd,
if a person offers a meeting in alone to other with a sexual intention then such conduct shall be
termed as sexual harassment.
Further, It was held in the case Smith v Hehir and Financial Advisors Aust Pty Ltd that to declare
a conduct as sexual harassment, this need to check that in that situation, whether a reasonable
person could have anticipation of the fact that the other person would feel offended by such act.
So, here in the studied case, Lewis must have an assumption that Megan would feel offended by
his offer as she was already married and had a child also.

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In addition to this, to satisfy the required condition to declare a conduct sexual harassment, the
related conduct must not be welcomed one. In the provided case Megan has blushed after Lewis
invitation and before this she did not provide any welcomed move to him Lewis. She has just
blushed and went back to her work. She did nothing apart from this. Further this is also to be
noted that she has rejected Lewis’s first request at the same time. Lewis continuously asked her
to go out with him but Megan not accepted his any of the proposal and also left the job later on.
So, the conduct of her blush cannot be treated as ‘welcome’ or ‘invitation’ move.
Conclusion
To answer and conclude the provided issue it may state that Sexual harassment is always an
unwanted conduct which creates an offensive environment. The same is also a crime under Equal
Opportunity Act, 2010 and other common law of the country. In the studied case, conduct of
Lewis was sexual harassment as it meets out with all the required criteria. Further, Megan can
bring action against Lewis under equal opportunity legislation.

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Question 2
Issue
In the given cases, Megan was getting low fee task, which was putting an adverse impact of her
monthly income. Due to this reason she was also failing to meet out her monthly budget. Further,
when she discussed this to Lewis, he replied that sometimes it happens in the practice. Although,
there was no other person at that workplace, who was facing similar kind of issue. In addition to
this, Megan also has been asked to deliver more working hours to organization by Lewis. Now
the question is that whether Megan can sue to Lewis to conduct
Rules
As per the provision stipulated under part 2 of Equal Opportunity Act, 2010 discrimination mean
is to behave in an unequal manner with employees on the basis of age, gender, marital status and
others. Many of the times such discrimination conducts on the basis of religion. Discrimination
at workplace can be direct or indirect (Victorian Equal Opportunity & Human Rights
Commission, 2018).
Direct discrimination is a situation where an employer directly refuses to give equal opportunity
to one or more employees and treat them less favorably in comparison to other employees (Anti
Discrimination Commission Queensland, 2018). Whereas in indirect discrimination although
employer do not directly make any statement and do behave in a manner which shows his
intention to do discriminate among his/her employees but creates such conditions in which every
employees does not treated equal (Acas, 2013).

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Further in under section 6 of Equal Opportunity Act, 2010 there are some attributes are mention,
on which discrimination can be conducted by an employer in against his/her one or more
employee (Fair work Ombudsman, 2018). Discrimination is always an unfair conduct on part of
employer, until such person has reasonable ground to justify the requirement and fairness of the
same. It the case of indirect discrimination, employer does conduct of unfavorable treatment.
Unfavorable treatment is a sub-kind of discrimination in which an employer do conducts like
improper allocation of task and wrongful bullying of one or more than one but not every
employee (Victoria Legal Aid, 2018).
There are number of example of discrimination. Here this is important to mention that while
considering a conduct of an employer as discrimination, his/her motive does not matter. This can
be asset as that intention and purpose of employer is irrelevant in the cases of discrimination. If
an employer do not treat his/her all employees equal without any justified reason, then his/her
such conduct shall be treated as discrimination (Community Door, 2018).
Application
In the case studied, Megan was only receiving task which require high efforts but deliver very
less return in comparison to. Lewis never said anything directly to Megan and also not accepted
that he was allocating task in an unfair mode to the employees. Instead of accepting the fact, he
asked Megan to work more in order to deliver farm results to the firm.
When Megan discussed the issue of improper allocation of work with Lewis, he said that being a
part time solicitor, she is expected to get such low fee task. In the course of justification of his
statement he further added that it is general practice to provide such kind of task to part time

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solicitors due to sensitive time frame. Whereas it has noted that there was also another employee
working as part time solicitor who was getting good tasks. Here it may state that reason given by
Lewis was not justified as other employees having same situation was not treating like Megan
and Lewis was conducting indirect discrimination with Megan.
Further, Lewis has continuously asked to Megan for delivering good result and at last he left
opened an option to her. Lewis let Megan decide to either join for full time or to left the
organization. Due to this Megan had to leave job. It may observe that Lewis was doing
unfavorable conduct with Megan by doing improper allocation of task among employees. As
intention or motive behind discrimination is just irrelevant in such cases, Lewis was the guilty in
this case.
Conclusion
After the required study of the assigned case and issue, it can be concluded as that the conduct of
Lewis shall be considered as discrimination as there are not any proper ground to justify his act.
In the cases of discrimination motive or purpose are not factors. Here in this case why Lewis has
done such conduct with Megan is immaterial and cannot be a part of proceedings.
Megan left her job due to the conduct of Lewis so here she can sue him under equal opportunity
legislation

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References
Acas. (2013) What's the difference? Direct and indirect discrimination. Available from:
http://www.acas.org.uk/index.aspx?articleid=4614 [accessed on 31/05/18]
Aleksovski v Australia Asia Aerospace Pty Ltd [2002] FMCA 81
Anti Discrimination Commission Queensland. (2018) Direct and Indirect discrimination.
[online] Available from: https://www.adcq.qld.gov.au/resources/brochures-and-guides/fact-
sheets/indirect-discrimination [accessed on 31/05/18]
Australian Human Rights Commission. (2018) Sexual Harassment (A Conduct in Practice) -
What is sexual harassment? [online] Available from:
https://www.humanrights.gov.au/publications/sexual-harassment-code-practice-what-sexual-
harassment [accessed on 31/05/18]
Community Door. (2018) Discrimination in the Workplcae. Available from:
https://communitydoor.org.au/discrimination-in-the-workplace [accessed on 01/06/18]
Equal Opportunity Act, 2010 (Cth)
Fair work Ombudsman. (2018) Workplace discrimination. Available from:
https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-
obligations/workplace-discrimination [accessed on 01/06/18]

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Lawstuff. (2018) Sexual Harassment. [online] Available from:
http://www.lawstuff.org.au/nsw_law/topics/sexual-assault-and-sexual-harassment/sexual-
harassment [accessed on 31/05/18]
Saunders, S. (2015) Whispers from the Bush: The Workplace Sexual Harassment of Australian
Rural Women. Federation Press: Australia
Smith v Hehir and Financial Advisors Aust Pty Ltd [2001] QADT 11
Victoria Legal Aid. (2018) Discrimination and victimization. Available from:
https://www.legalaid.vic.gov.au/find-legal-answers/discrimination-harassment-and-bullying/
discrimination-and-victimisation [accessed on 01/06/18]
Victorian Equal Opportunity & Human Rights Commission. (2018) Discrimination – Workplace.
[online] Available from:
https://www.humanrightscommission.vic.gov.au/the-workplace/workplace-discrimination
[accessed on 31/05/18]