The sensitive issue of harassment
IJoanna Mathers
f two words encapsulated the spirit of 2017, they were “me too”. The hasthtag that went in the wake of the Harvey Weinstein scandal followed Alyssa Milano’s plea for women to tweet #metoo if they had been subject to sexual abuse. Since its emergence in October it has been shared millions of times; a powerful testament to the ongoing issues surrounding the experiences of women worldwide.
Since #metoo’s emergence, the behaviour of many famous men has been called out online. One example of the power of #metoo is the graphic account of a date gone wrong involving Parks and Recreation’s Asiz Anzari.
Viewed by some as “revenge porn” and others as yet another example of the evils of men, this most recent account has raised questions around whether such public shaming has gone too far.
The workplace isn’t exempt from sorry stories of sexual misconduct. The photocopier grope, the sleazy stares down the top, the off-colour comments — most women will have tales to tell about situations that made them feel uncomfortable.
Sexual misconduct in the workplace is a “no no” and with the raised awareness around the issue is likely to be tolerated less and less.
But what actually constitutes sexual misconduct? In 2018, where is the line drawn when it comes to workplace behaviour? And are there grey areas?
Rachael Judge is a senior solicitor at Simpson Grierson. She explains that there are two distinct definitions of sexual harassment that are defined within both employment and human rights law.
The first is unambiguously behaviour.
The second definition is more open to interpretation; where someone (through use of language, visual material, or physical behaviour) engages in behaviour the receiver doesn’t want and is offensive to them. direct action — serious sexual
Unlike bullying in the workplace, where repetition and intention must be proven, these factors are irrelevant when it comes to sexual harassment.
“Someone who has been accused of sexual harassment can’t use an excuse like ‘it was only a joke’,” says Judge.
She uses the example of building sites (where the stereotypical wolf whistle is still alive and well) and the attitude of such behaviour as being “just banter”.
“There was actually a case when a young apprentice engineer made a complaint against older colleagues for sexually inappropriate comments about his sister,” she says.
“This case was upheld, even though the perpetrators claimed in was all in jest.”
The first port of call for anyone who feels they have been subject to sexual harassment is the management or human resources team within their place of work. Most of the issues that arise in the workplace involving such behaviour can be resolved internally, but sometimes complainants don’t feel that the outcomes have been ideal and turn to the law for help.
Judge says the Employment Relations Authority is usually the first legal body to deal with such cases. It will try to resolve the cases through internal processes, but if unsuccessful cases can be referred to the courts.
People can also choose to have the case seen by the Human Rights Commission; if there is no resolution this can be referred to the Review Tribunal.
It’s not just victims of sexual harassment who can have their day in court; those accused of sexual harassment can also use the judiciary for resolution.
Judge points to a recent case where an employee of ASB was dismissed from his job for inappropriate behaviour towards a junior staff member. He took his case to the Employment Relations Authority, who found that he had been “unfairly dismissed”.
This was due to his history of outstanding work over nearly 20 years, his quick apology to the complainant and otherwise flawless employment record.
He was awarded more than $100,000 in lost income, but this was reduced to around $10,000 as he was considered the author of his own misfortune.
The amount of compensation a complainant in a sexual harassment trial is eligible for has been rather contentious. Historically, awards were around $7000, but the Employment Relations Authority agreed to raise the level of compensation and it now sits at the mid $20,000s. This is paid by the employers; they are also responsible for ensuring the correct disciplinary procedure is followed with regard to the perpetrator.
Judge feels things are getting better when it comes to incidents of workplace sexual harassment, and there is far greater awareness around unacceptable behaviour. But she says establishing what is and isn’t appropriate can be a “tricky balancing act”.
“Employers need to be very sensitive about addressing the concerns of the complainant, while being mindful of the rights of the accused.”
Though it’s laudable that women have a voice and a supportive platform through which to tell their stories, there are also ambiguities that can’t be addressed by simple shaming. Employers need to be careful to balance the very real concerns of any complainant with the wider context of the accused’s employment history.