Australia’s National Research Organisation for Women’s Safety (ANROWS) published a report on 7 June 2024, authored by a research team at the University of Sydney, finding sexual harassment in retail workplaces “is seen by workers as a routine and unavoidable aspect of daily work” and is influenced by "the “customer is always right” mantra" (the Report).¹

Service industries & workplace sexual harassment

In the retail industry, approximately 1 in 2 women and 1 in 4 men reported being sexually harassed at work.² This compares with approximately 1 in 3 for the general working population.³ Customer or client perpetrated sexual harassment accounted for 36% of incidents in the retail industry and 19% for the general working population.⁴

In an industry that employs 9% of all Australians and is the third largest employer of Australian women, this is a concerning issue requiring attention.⁵

The hospitality industry has also been recognised as having disproportionately high rates of sexual harassment.⁶

However, this issue is not isolated to the retail and hospitality sectors. Many industries have employees who interact with the public – banks, sales, aged care, community care, healthcare, professional service firms, personal training, education and the list goes on.

Unlawful sexual harassment

Workplace sexual harassment is unlawful and has been since 1984.⁷

Specifically, it is unlawful for an employer or fellow employee to sexually harass another employee.⁸ Employers can be vicariously liable for their employees’ actions unless they have taken all reasonable steps to prevent such conduct.⁹

It is also unlawful for an individual to sexually harass an employee if the harassment occurs in connection with the person being an employee.¹⁰ This provision was introduced in 2011 to protect employees from sexual harassment by clients or customers. An employer can also be vicariously liable for a client or customer’s sexual harassment if the employer was in a position to prevent the unlawful conduct and failed to do so.¹¹

Positive duty to eliminate sexual harassment

Following the #MeToo movement and a world first inquiry into workplace sexual harassment in Australia, the Labor government introduced a positive duty to eliminate sexual harassment in 2022. 

The positive duty requires employers to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment. This includes sexual harassment by one employee towards another and by a third party towards an employee if it occurs in connection with the employment.

The steps required to discharge the positive duty will differ between organisations, depending on factors including size, nature and resources.¹² However, no business, big or small, is immune from the duty.

The duty operates alongside occupational health and safety (OHS) laws, under which employers must provide, so far as is reasonably practicable, a working environment that is safe and without risks to health. By way of example, in 2023 a director and two associated companies, who ran two Hudsons coffee shops in Victoria, were convicted under OHS laws and fined a total of AU$290,000 for workplace sexual harassment. The director had sexually harassed staff, some as young as 16, over many years. The conduct included touching, groping and sexually intrusive and suggestive comments. Whilst Hudsons had an online bullying and harassment policy, the policy did not include contact details for making a report and employees did not understand to whom they could complain.¹³

How can employers shield employees from sexual harassment by clients and customers?

Employers cannot control the behaviour of a client or customer. However, employers can take reasonable steps to eliminate the risk of clients or customers sexually harassing their workers – and this is an employer’s obligation.

The steps required to discharge the positive duty will differ between organisations. However, employers should be considering the following:

• Do workers understand that the customer is not always right? Frontline workers need to understand which behaviours from clients and customers are, and are not, acceptable, and how to handle unacceptable behaviour. Are leaders, managers and workers told they may refuse service or entry to customers or clients who engage in sexual harassment?¹⁴ This is especially important for junior staff, who may be particularly vulnerable to poor behaviour from customers. Do junior staff understand that they do not have to endure unlawful behaviour just to make a sale and know that the organisation will have their back?
• Workplace policies and procedures on acceptable workplace behaviour – are they clear and easy to understand? Do policies state that sexual harassment is unlawful? Are employees inducted into the policies and do they know where to find them? Is there a distinct section (or separate policy) on sexual harassment?
• Training on workplace behaviour – training should be provided regularly and face to face. It should also cover safely managing inappropriate behaviour from customers or clients (where relevant to the business) and include relevant real-world scenarios and bystander intervention strategies.¹⁵
• Supervisors & store managers should be provided with tailored training to handle sexual harassment claims effectively. Training should also enable them to educate their teams and normalise conversations about sexual harassment, ensuring employees feel comfortable seeking help.
• Bystander action – do employees understand what to do if they observe sexual harassment? The majority of bystanders of workplace sexual harassment do not take any action.¹⁶ However, in the majority of cases, bystander intervention has had a positive effect leading to the reported sexual harassment stopping, and over half of bystanders received positive feedback for making a complaint about the workplace sexual harassment.¹⁷
• Reporting processes – sexual harassment is not widely reported, with fewer than 1 in 5 people who experienced sexual harassment in the workplace making a formal report or complaint.¹⁸ Consider whether there are any barriers to employees reporting sexual harassment in your business. Do employees understand how to report sexual harassment, to whom to make a report and the processes and results that will flow from that complaint?
• Safe staffing – ensure sufficient staffing levels during high-risk periods such as store closing time.¹⁹
• Offsite safety control measures – if an employer sends workers offsite, for example to a client or customer’s premises, the employer should consider the safety of the off-site working environment. This may be facilitated by accessing a layout of the workplace, and querying about supervision and security protocols at the location.²⁰
• Promoting awareness with customers and clients – are customers or clients aware that unlawful behaviour towards workers is not tolerated? An employer may use signs, posters or contractual terms to make this expectation clear.
• Safety strategies – for example, CCTV cameras, in-store security personnel, duress alarms, or code words may be appropriate, depending on the business.²¹
• Gender balance and diversity as a priority in leadership teams – research indicates that gender diverse boards, and access to relevant expertise, are linked to stronger governance and oversight of sexual harassment issues.²²
• Senior leaders hold ultimate responsibility and accountability for the legal compliance of their organisation.²³ Depending on the business, senior leaders may include owners, the board, the CEO or senior leadership teams. For larger organisations, consideration should be given to whether senior leaders have KPIs for promoting positive workplace culture and whether sexual harassment is an agenda item at board meetings.

Workplace sexual harassment can have a devastating impact on individuals who directly experience it, as well as on bystanders, families and friends. Additionally, it imposes a significant financial burden on the Australian economy, costing an estimated AU$3.5 billion in 2018, including approximately AU$2.6 billion in lost productivity.²⁴

Beyond fulfilling legal obligations, employers have a compelling incentive to eliminate sexual harassment in the workplace, including from clients and customers - doing so not only cultivates a culture of respect but also increases workplace safety and productivity.

1. “Just another day in retail”: Understanding and addressing workplace sexual harassment in the Australian retail industry, Australia’s National Research Organisation for Women’s Safety (ANROWS), June 2024.
2. Time for respect: Fifth national survey on sexual harassment in Australian workplaces, AHRC, November 2022, page 114.
3. Time for respect: Fifth national survey on sexual harassment in Australian workplaces, AHRC, November 2022, page 12.
4. “Just another day in retail”: Understanding and addressing workplace sexual harassment in the Australian retail industry, Australia’s National Research Organisation for Women’s Safety (ANROWS), June 2024, page 41.
5. “Just another day in retail”: Understanding and addressing workplace sexual harassment in the Australian retail industry, Australia’s National Research Organisation for Women’s Safety (ANROWS), June 2024, page 11.
6. Not So Hospitable: Sexual Harassment in the Adelaide Hospitality Industry, the University of Melbourne, 2024, page 3.
7. Section 28B of the Sex Discrimination Act 1984(Cth).
8. Section 28B(1) and (2) of the Sex Discrimination Act 1984 (Cth).
9. Section 106 of the Sex Discrimination Act 1984 (Cth).
10. Section 28B(8) of the Sex Discrimination Act 1984 (Cth).
11. Section 105 of the Sex Discrimination Act 1984 (Cth).
12. Section 47C(6) of the Sex Discrimination Act 1984 (Cth).
13. WorkSafe prosecution, October 2023.
14. Guidelines for complying with the positive duty under the Sex Discrimination Act 1984 (Cth), AHRC August 2023, page 45.
15. "Just another day in retail”: Understanding and addressing workplace sexual harassment in the Australian retail industry, Australia’s National Research Organisation for Women’s Safety (ANROWS), June 2024, page 89.
16. Time for respect: Fifth national survey on sexual harassment in Australian workplaces, AHRC, November 2022, page 171.
17. Time for respect: Fifth national survey on sexual harassment in Australian workplaces, AHRC, November 2022, page 177.
18. Time for respect: Fifth national survey on sexual harassment in Australian workplaces, AHRC, November 2022, page 130.
19. Just another day in retail”: Understanding and addressing workplace sexual harassment in the Australian retail industry, Australia’s National Research Organisation for Women’s Safety (ANROWS), June 2024, page 101. 
20. Guidelines for complying with the positive duty under the Sex Discrimination Act 1984 (Cth), AHRC August 2023, page 101.
21. “Just another day in retail”: Understanding and addressing workplace sexual harassment in the Australian retail industry, Australia’s National Research Organisation for Women’s Safety (ANROWS), June 2024, page 101.
22. Equality across the board: Investing in workplaces that work for everyone, AHRC, June 2021, page 33. 
23. Guidelines for complying with the positive duty under the Sex Discrimination Act 1984 (Cth), AHRC August 2023, page 30.
24. Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, AHRC, 2020, page 81.