Employers have a duty to provide employees with a safe work environment, including from unwanted behaviour of a sexual nature. Further, if an employee alleges sexual harassment by a co-employee or a customer, the employer must look into the allegation and, if satisfied that it has occurred, must take whatever steps are practicable to prevent any repetition of that behaviour.
In a recent case, the Employment Relations Authority found that an employee had been subject to sexual harassment in the workplace when the employer’s sole director placed a reciprocating sabre saw without the blade attached behind the employee’s bottom and turned it on saying “you would like that wouldn’t you.”
The employee gave evidence that he was offended by the director’s action and felt humiliated. The director said it was a moment of “friendly banter” and the ERA held that it was likely he did not intend to cause offence because he saw it as a joke. However, despite this, the ERA accepted that what the director had done was unwelcome and offensive and, although a one off, had a detrimental effect on the employee’s job satisfaction.
Consequently, the employer had not provided the employee with a safe workplace and had unjustifiably disadvantaged the employee. The employee was awarded $3,000 as compensation.
What is sexual harassment?
In the employment context, the Human Rights Act and the Employment Relations Act provide statutory definitions for sexual harassment.
An employee will have been sexually harassed in their employment if:
- Their employer or a representative of their employer directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains—
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- an implied or overt promise of preferential treatment in that employee’s employment; or
- an implied or overt threat of detrimental treatment in that employee’s employment; or
- an implied or overt threat about the present or future employment status of that employee; or
- A co-employee or customer directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains—
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- an implied or overt promise of preferential treatment in that employee’s employment; or
- an implied or overt threat of detrimental treatment in that employee’s employment; or
- an implied or overt threat about the present or future employment status of that employee; or
- There is:
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- conduct, words, visual material, or behaviour of a sexual nature, for example this could be sexual jokes; sexual videos; physical contact; persistent romantic or sexual requests;
- which is unwanted, unwelcome or offensive (whether or not that is conveyed to the employer or representative);
- it has a detrimental effect on the employee’s employment, job performance, or job satisfaction; and
- whether by an employer, employer’s representative, co-employee or customer.
Under this point 3, while each of these elements must be satisfied, more often than not, it is the second and third points that raise the greatest questions.
In another case, Craig v Slater, the Court had to consider whether Ms MacGregor, a press secretary for Mr Craig, found certain conduct by Mr Craig unwelcome. The Court held that, where there is a complaint of intentional sexual conduct or language and there is a power imbalance favouring the alleged perpetrator over the complainant, for example a manager and a subordinate, it is reasonable to draw a rebuttable inference that the sexual conduct or language was unwelcome. In other words, in these circumstances, a Court may infer that certain conduct or language was unwelcome but the alleged “offender” can still disprove this presumption on the evidence.
In the case, therefore, the Court found some of Mr Craig’s actions were unwelcome but others were not. For example, Mr Craig had sent a letter to Ms MacGregor, which contained statements such as, “ I have never even given you a hug. I actually regret that. There have probably been a couple of times I would have liked to…”. While the Court found that the letter contained flirtatious elements, on the evidence, it could not be established that Ms MacGregor found the letter unwelcome at the time (even if, subsequently, she considered it was so). This is because, in response to the Craig’s letter, Ms MacGregor texted him, “Thank you so much for your letter”, “Oh dear. Thinking of you…” and “. .. you really are wonderful. I hope theres (sic) time for me to loosen up your shoulders tomorrow…”
Similarly, in respect to an incident where there was some contact of a sexual nature, while Ms Macgregor gave evidence that the incident caused her to feel “scared and awful”, the Court was unable to accept that, as, following the incident, Ms MacGregor sent a text to Mr Craig that stated “… you make my heart melt… Love ya. Nanite…” Further, subsequent texts in the days after showed no antipathy towards Mr Craig and demonstrated that the personal relationship between Mr Craig and Ms MacGregor continued to be intimate.
However, in respect to statements made by Mr Craig to Ms MacGregor of a sexual nature over a subsequent 2 year period, the Court found that there were not welcomed by Ms MacGregor. This was even though Ms MacGregor did not complain about the behaviour at the time as the Court accepted that Ms MacGregor was concerned about the effect of a complaint on her employment.
When considering the final element of sexual harassment – detrimental effect – the Court held that “In a workplace, professional or social setting, detriment, disadvantage or harm to a person subjected to an (unwelcome/unwanted) intentional sexually oriented act or remark is inherent in the unwelcome, unwanted or offensive nature of the language or behaviour employed”. In other words, where conduct is unwelcome/unwanted, there will be inherent detriment, disadvantage or harm to a person subject to such, such as “having to work in the strained, tense or demeaning atmosphere inevitably created by unwelcome sexual conduct or language.”
Finally, the Court confirmed that there can be sexual harassment even if an “offender” does not know or intend that their conduct be unwanted or unwelcome or that it would cause or be likely to cause detriment. Consequently, while intentional conduct or language of a sexual nature is first required, the focus then shifts to the response of, and consequences for, the person subjected to it – did they find it unwelcome/unwanted and did they experience disadvantage from it?
Further, even a one off incident can still constitute sexual harassment, it does not need to be repeated. Even an isolated incident of sexual harassment in a workplace or professional setting, depending on its severity, could have long-term implications for a continuing work relationship.
Interestingly, while the Court noted that it is implicit in the current statutory definitions of sexual harassment that whether there was sexual harassment requires reference to the circumstances that existed at the time it is alleged to have occurred, the Court also accepted that this may change in light of greater societal awareness of the way in which employees may be disadvantaged by the exploitation of a power imbalance in a workplace. In other words, an employee, subject to a power imbalance, might not turn their mind to whether certain actions are unwelcome at the time but later, on reflection, consider they were manipulated into a consensual sexual relationship. That consideration, recognising the possible exploitation of a power imbalance, may therefore result in an extended definition of sexual harassment in the future.
Takeaways
Awareness of possible sexual harassment in the workplace has grown of late, particularly in the context of relationships where there is a power imbalance. Employers not only need to know what sexual harassment is but also need to take steps to safeguard employees against it. As a first port of call, employers should have a policy addressing sexual harassment, including what it is, practical guidance to reduce the chances of it occurring, and what employees should do if they believe they have been subject to sexual harassment. All staff, including managers, should be familiar with this policy, at the start of their employment and throughout it.
This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:
- Hannah Carey, Senior Counsel – hannahcarey@parryfield.com
