“Sexual harassment is a festering wound within New Zealand’s workplaces”. This is the title of a Stuff article posted by Jessica Long on 3 March 2018. Over recent months, sexual harassment in the workplace has been widely publicised and debated in the public arena. The Harvey Weinstein scandal caused a public outcry and set the ball rolling for the #metoo campaign. New Zealand was also recently shocked by revelations about some in the legal profession. Sexual harassment can occur to anyone, no matter their workplace.
Section 108 of the Employment Relations Act 2000 covers the ambit of sexual harassment in our law. A popular perception of sexual harassment is giving sexual favours in return for an advancement in career or to stop detrimental treatment in the workplace. Whilst s108 does cover this situation, the scope is much wider than immediately assumed.
Section 108(1)(b) covers actions that are sexual in nature and may cause distress to an employee. Language, materials or behaviour that is sexual in nature can be classed as sexual harassment. This can be verbal, written, visual or physical. The conduct must be unwelcome or offensive to the employee by the nature of the act or due to its repetition. If this conduct has a detrimental effect on the employee’s job, their job performance or their job satisfaction, it may be classed as sexual harassment.
Sexual jokes, pictures of a sexual nature or unnecessary familiarity are examples of conduct that could come within the definition. A revealing calendar in a staffroom could make an employee so uncomfortable that this comes within the ambit of sexual harassment. Alongside assessing the work environment and the accused, the complainant is at the centre of the claims. It must be determined how the conduct impacts on them.
The test for sexual harassment is objective with subjective considerations. Whether the conduct was sexual in nature is viewed objectively. Consideration of whether this conduct was unwelcome or offensive is assessed from the perspective of the complainant. Material or financial disadvantages are not needed for detriment to be shown.
Through this, it is clear that the complainant is key to proceedings – their feelings and views are at the centre of determining sexual harassment as they are the ones who are affected in their job. It is important that the complainant is heard and that an environment is created to support them in speaking out. As the #metoo campaign has so powerfully expressed, it is difficult to speak out in a situation where the complainant feels subordinated and vulnerable.
An employer should investigate a complaint even if the employee does not want them to. An employer has a duty under the Health and Safety at Work Act 2015 to keep their employees safe whilst working. A ‘hazard’ in the statute is deemed to be wide enough to include someone’s behaviour that is stress inducing.
It is detailed that an employee has a duty to keep themselves safe in the course of their employment. However, toleration is not a strong factor in determining workplace sexual harassment, especially if the environment is such that the complainant did not feel comfortable speaking out. It is up to the employer to create an environment that is open for people to bring their concerns and to take complaints seriously for the good of the complainant and the accused. Ideas that it will cause more distress to tell a wider group of people does not ensure a safe workplace. Under the Employment Relations Act 2000, if an employer fails to investigate, steps can be taken against the employer and the employer runs the risk of a constructive dismissal claim.
A greater understanding of sexual harassment is needed. People need to be educated about what it is and assured that they can speak out in the environment they work in. The more people understand about sexual harassment, the greater the likelihood that these incidents will stop. People need to be more cautious of others in an area of life that is fundamental to many. 40 hours per week in a toxic work environment is not something anyone should have to endure.