Federal Court considers Sex-Based Harassment

In Magar v Khan [2025] FCA 874, the Federal Court has, for the first time, considered the scope of sex-based harassment under section 28AA of the Sex Discrimination Act 1984 (Cth).

In this case, it was hardly surprising that the Court found that the primary female Applicant’s male manager sexually harassed her when he:

• commented on her "hickey" and asked if she got "banged", pointed it out to other employees and asked them if they thought she had enjoyed her night out;

• showed the employee pornography;

• asked her what her vulva looked like and which of her colleagues she would like to sleep with;

• asked her if she had ever had sex with a woman or watched lesbian pornography and told her to loosen up and experiment;

• showed her his sex toys and touched one of them on her thigh;

• told the employee about his sex life with his ex-wife;

• asked her about her sex life; and

• suggested they attend a massage parlour to watch pornography together.

The interest in this case, beyond the obvious findings of sexual harassment, were how the Court would interpret the meaning and effect of sex-based harassment in section 28AA. It was alleged as a separate claim that the primary female Applicant was also subject to sex-based harassment because male work colleagues used sexualised and sexually explicit language and descriptions in relation to other female employees and female customers as well as making comments about how females should dress.

Sex-based harassment is different to sexual harassment and provides that a person harasses another person on the ground of sex if, by reason of the sex of the person, they engage in unwelcome conduct of a demeaning nature in relation to the person harassed.

The Court, focusing on the words ‘in relation to’ in section 28AA, said “although the conduct does not have to be directly addressed to the person harassed, some nexus is still required, in that the conduct must be in relation to the person harassed”. The Court found in this case, the demeaning comments and purported humour as to sexual activity had been made by male employees about, and directed towards, women other than the Applicant and therefore did not amount to sex-based harassment of the primary female Applicant.

Our Take

We were surprised that the Court took such a strict interpretation to the meaning and effect of sex-based harassment rather than extending it as far as the primary female Applicant claimed. Perhaps it was because the sexual harassment was so obvious and the compensation and damages so large that the Court did not want to ‘risk diluting’ their already strong message with arguments about technicalities in the yet ‘untested’ application of sex-based harassment? We will no doubt see further consideration and interpretation of section 28AA in future cases.

The compensation awarded in this case ($305,000 including $160,000 for general damages) was significant and consistent with the trend since Richardson v Oracle towards higher general damages for sexual discrimination and sexual harassment.

The decision is another clear lesson about assumptions that complainants are lying instead of conducting thorough and impartial investigations. In this case, when the employee complained about the employer’s conduct the employer’s legal representatives threatened to bring defamation proceedings against the employee unless she withdrew her complaint which resulted in an order of $10,000 general damages for victimisation and $5,000 for aggravated damages (which is very rare but likely to be more present in this area going forward).

Action Items:

1. Use Codes of Practice:

   There are now State, Federal and industry specific Codes of Practice that provide the benchmark and practical steps for employers to meet their positive duty to eliminate sexual discrimination, sexual harassment and sex-based harassment. This includes the Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 released by the Federal Government in March this year.

2. Review and Update Policies: Ensure workplace policies explicitly address sexual discrimination, sexual harassment, sex-based harassment, hostile work environments and victimisation.

3. Training and Education: Provide regular refresher training to all staff on recognising, preventing and responding to harassment and discrimination including the role of bystanders. Leading practice is for training to be face-to-face rather than online modules which are considered a 'tick-and-flick' approach and less likely to be effective.

4. Establish Clear Reporting Mechanisms: Implement confidential and accessible processes for employees to report harassment or discrimination, including where the behaviour is engaged in by clients or customers or senior executives or Board members.

5. Prompt and Effective Response: Investigate complaints using the 4 T’s – thoroughly, transparent, timely and trauma-informed.

6. Monitor Workplace Culture: Regularly assess the workplace environment and take steps to promote respect and inclusion.

Edge Legal

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