Federal Court hands down first decision on new sex-based harassment prohibition

In Magar v Khan (2025), the Federal Court handed down its first decision in relation to the prohibition against harassing conduct based on sex, which is not necessarily sexual in nature. This prohibition was introduced in 2021 when the Federal Government amended the Sex Discrimination Act 1984 (Cth).

The prohibited conduct, harassment on the ground of sex, is conduct of a demeaning nature in relation to the person harassed. Although the conduct does not have to be directly addressed to the person harassed, some connection is still required, in that the conduct must be in relation to the person harassed.

Like sexual harassment, harassment on the ground of sex requires the identified conduct to be unwelcome to the complainant. A reasonable person, having regard to all the circumstances, must have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

In this case, the Court found that two of the most senior men in a fast-food store fostered a workplace culture disinterested in preventing sexist conduct from taking place and was instead tolerant, even encouraging, of its continuation. Such a workplace culture can normalise sexualised behaviour towards women and foster an escalation into worse behaviour, such as a progression into sexual harassment.

However, the Court wasn’t satisfied the conduct was harassment on the ground of sex in relation to the complainant because it wasn’t directed to her. The only conduct that might have constituted harassment on the ground of sex was comments made to the complainant about her attire and body when she wore skinny jeans to work. However, the evidence was not clear enough for the Court to be satisfied that this went far enough to establish a contravention.

The Court did, however, find the employee was sexually harassed by her manager when he directed to her a sequence of highly sexualised comments. The Court found the manager also victimised the employee when he threatened her with defamation proceedings if she made the complaint.

The Court awarded:

general damages for sexual harassment of $160,000;
general damages for victimisation of $10,000;
aggravated damages arising out of an aspect of the way in which the case was run at trial of $5,000; and
$90,000 for past economic loss up the date of the conclusion of the hearing, and $40,000 for future economic loss from the conclusion of the hearing.

New worker undertakes new task with alarming results
A Victorian steel manufacturer was fined $90,000 for an incident in which a worker’s hand was trapped in rollers of a steel-bending machine ...