Concepts of 'Reasonableness' in Sexual Harassment Legislation: Did Queensland get it right?
AbstractWhich behaviours constitute unlawful sexual harassment and which do not? Attempts by legislatures and judicial decision-makers in various jurisdictions to determine this question have been plagued with difficulties. The concept of 'reasonableness' as a test for unlawful sexual harassment is a common legislative theme found in all Australian jurisdictions as well as overseas jurisdictions such as the United States. This paper identifies problems with the concept of reasonableness and its application by judicial decision-makers in sexual harassment cases and examines the position in the United States and federal Australian jurisdiction to illustrate such problems. The paper concludes with an examination of how the definition of sexual harassment and application of the 'reasonableness' test under the Anti-Discrimination Act 1991 (Qld) fares in comparison to the United States and federal Australian jurisdiction.
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