4 What does the law say? 4.5 What is sexual harassment? Sexual harassment is unlawful under the Act in certain areas of public life, including in the provision or receipt of goods, services and facilities.54 It is also unlawful for a member of the management committee of a club to sexually harass a member, or applicant for membership, of the club.55 ‘Sexual harassment’ is defined in the Act as an unwelcome: • sexual advance • request for sexual favours, or • conduct of a sexual nature, in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.56 The sex and gender identity of the person who is harassed are relevant circumstances to be taken into account in determining if a person has been sexually harassed.57 Sexual harassment can be physical, spoken or written, and may include comments online or in social media. It may include a range of unwelcome behaviours including: • requests for sex • intrusive comments about someone’s private life • sexually suggestive behaviour, such as leering or staring • sexually suggestive comments or jokes • repeated requests to go out • sexually explicit messages.58 Sexual harassment can also include sexually suggestive or invasive questions, such as asking a transgender or gender diverse person about their sex life, or asking them about their physical characteristics. Case study Sexual harassment Lindsay is a trans man and has recently joined a cycling ‘club’, as defined in the Act. While most club members have been very welcoming, one of the club’s directors George, rode up next to him and asked him a number of detailed questions about his sex life. Lindsay told George his questions were inappropriate and asked him to stop. George shrugged so Lindsay assumed he had gotten the message. However, on the club’s latest ride George asked Lindsay more questions about his sex life in the context of his transition. Lindsay asked him to stop again. George’s repeated questioning is likely to amount to sexual harassment. It is unlawful for the member of a club’s Board or management committee to sexually harass a member of a club. 4.6 What is victimisation? Victimisation is an offence under the Act59 and the Commission can also inquire into complaints of victimisation. A person will be taken to have victimised another person if they threaten to, or do, subject that person to a detriment because they have either made a complaint under the Act, or have engaged with the Commission’s complaints process in some other way (for example, as a witness in proceedings).60 This applies to complaints of discrimination and sexual harassment.61 28