Helping employees navigate sexual harassment in the workplace

In 2018, sexual harassment in the workplace was 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 harassment in the legal profession. Sexual harassment can occur to anyone, no matter their workplace. We have been advocating in respect of these issues over the lifetime of our firm.

The Employment Relations Act 2000 defines sexual harassment in our law. A popular perception of sexual harassment is that it involves seeking sexual favours, either in return for an advancement in career or to stop detrimental treatment in the workplace. This is very much within the definition, but the scope is much wider than this kind of conduct.

The definition also 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, images 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 has impacted them.

The test for sexual harassment is objective with subjective considerations. Whether the conduct was sexual in nature is viewed objectively – would a reasonable person think the conduct was sexual? Consideration of whether this conduct was unwelcome or offensive is assessed from the perspective of the complainant.

We appreciate the sensitivity of these matters and are experienced advocates in resolving these difficult and personal issues that can have a significant effect on individuals.