Where is the line in the sand to be drawn? What is the decider between harassment and a consensual relationship between employer and employee? What is appropriate behaviour?
The Harvey Weinstein outing highlights deficiency in NZ workplace sexual harassment laws. Buckettlaw says it is timely to reassess these.
What Is Sexual Harassment?
The law is muddy and ambiguous and dependent on the ethos and culture of the work environment. The culture of the workplace can be a barrier to reporting.
The Human Rights Act 1993 and the Employment Relations Act 2000 define sexual harassment as being when someone directly or indirectly asks another for sex, sexual contact/activity with a promise or suggestion of preferential treatment, threat of detrimental treatment or status of employment (i.e. loss).
Acts of sexual harassment can include the use of sexual language and physical behaviour that is unwelcomed or offensive. It must be repetitive and be so significant that it has a detrimental effect.
How Common Is It?
Recent NZ examples involving, Mr Sutton (the ex Cera CEO) and a Kapiti City councillor indicate it is not uncommon. In Britain a study done by legal firm Slater and Gordon found that 60% of women had experienced inappropriate behaviour of a sexual nature and that nearly 50% of those affected had been forewarned of the possibility of the behaviour before it happened.
The Politics of Humiliation Shame and Fear
Many victims are afraid to speak out for fear shame, humiliation and retaliation that may be inflicted by the harasser. In the case of the Weinstein victims they brought matters to the fore by the use external avenues (social media) not the law. The Weinstein victims could garnish support of others and the public while most complaints using the legal process risk being isolated by the process. It becomes their word against another more powerful figure.
Structural Imbalance of Power
Many NZ work-places are male dominated and perpetuate last century sexist attitudes. This often defines how women are perceived and what is or isn’t appropriate behaviour. Sexist attitudes at work remain despite the law. Hands up skirts, patting of bottoms and boob jokes are still common. The research by Slater Gordon in the UK confirmed as high as 60% of women had experienced inappropriate behaviours such as touching of legs hands up skirts hands on back. 21% reported that the behaviour was persistent.
The research found that most persons who complained were ostracised by the rest of the workplace for upsetting and threatening the equilibrium.
Our NZ equal opportunities commissioner Dr Jackie Blue said there was no reason to think that results in NZ would be any different. It is interesting to note that MBIE does not keep records on the issue, demonstrating how cavalier NZ regulatory bodies are to the issues.
How Easy Is It to Bring a Sexual Harassment Case Under NZ Law?
The current law makes it inherently difficult for a complaint to be made and succeed.
Unhelpfully there are inconsistencies between the two pieces of legislation.
Under the Employment Relations Act you must demonstrate the employer knew it was happening. There is no direct ability to bring an action against a co-worker, the perpetrator.
Under the Human Rights Act it is not necessary to show the employer knew. The onus is on the employer to show it took practicable steps to prevent the behaviour.
If the behaviour is systemic or persuasive to make the workplace unsafe then the Health and Safety legislation may apply. All workplaces by law should be safe and free from harassment.
The Legal Test Is Problematic
A person claiming sexual harassment must show the behaviour has caused “detriment” to them.
This means even though there is inappropriate, unwelcome and offensive sexual behaviour, if the victim of the behaviour cannot show detriment i.e. tangible effect on them in their workplace such as job enhancement or job performance, then the claim will fail. Dubiously, the Employment Relations Authority, in one of its decisions, held that mere emotional distress did not amount to detriment. This shows the difficulties with the law.
What Needs to Change?
The law for one thing. While there is law it is limited in its effectiveness. The requirement of detriment is a tangential hurdle that should go. The focus for accountability should be the behaviour not the consequence.
The legal process should protect and promote “speaking” out about unwarranted and inappropriate behaviour. Condemnation by social media may not be the most balanced way of addressing individual situations.
Workplace policies should include clear expectations of what is acceptable and what is not. Culture and values start at the top. There needs to be clear leadership role models condemning bad behaviours and attitudes. Women need to be free from this type of behaviour. They should not come to work and feel threatened or compromised by predatory behaviours.
Buckettlaw welcomes change and invites debate.
If you or your business could be affected by the issues contained within this article get in touch with BuckettLaw, the employment law experts right away.
Phone: 04 472 8600
Email: reception@buckettlaw.co.nz
Barbara Buckett
Senior Employment Lawyer
Principal, BuckettLaw
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for specific professional advice on any matter and should not be relied upon for that purpose. You should always seek professional advice before taking any action in relation to the matters addressed.
