Key Points:
Conduct that is unwanted, offensive, humiliating or
intimidating may nevertheless not constitute sexual harassment if
the conduct is not sexual in nature.
For a sexual harassment claim by an employee against an employer
to succeed a number of elements need to be satisfied. An employer
faced with such a claim should consider each element in determining
how strong its defence is and what its approach to the claim should
be, because a case that is strong in many respects may fail
completely because one element is not satisfied.
One element often overlooked by employers is that the unwelcome
conduct alleged by the employee must be considered by the Court or
Tribunal to be sexual in nature. A sexual harassment claim could be
successfully defended if it can be shown that the conduct,
regardless of whether it was welcome or not, was not sexual in
nature. A recent decision of the Equal Opportunity Tribunal of
South Australia dealt with this issue and came up
