How to make a move without risk of offence

How do you approach someone about sex without putting yourself at risk of sexual harassment?

“Wow, that’s a good question,” says Max Whitehead. “It is a very, very difficult path to tread.”

Whitehead is one of New Zealand’s leading employment relations practitioners who in the past decade has advocated in more than 2500 personal grievance cases and workplace disputes.

Describing sexual harassment complaints as “fairly common”, he says a claim can come down to interpretation.

“There are two pieces of legislation here, the Employment Relations Act and the Human Rights Act. The law that wraps around is the person who has received the contact has got to identify it as harassment,” he said.

Barrister and 2013 employment lawyer of the year, Catherine Stewart, said some cases could land in grey areas.

“The conduct has to be sexual in nature and that’s where a lot of blurring of the definition appears,” Stewart said. “In terms of whether it’s welcome — or offensive — the test is subjective.”

Whitehead suggested it was difficult to make an advance without accepting some level of risk, but some basics could help.

“If you think the attraction is reciprocated, a frank approach may be appropriate — saying: ‘I’m attracted to you. If you’re not to me, no problem’.”

The Auckland University student’s approach was technically sound, said Whitehead.

“At that point, legally the student is probably innocent to some degree. Ethically, possibly not if she knew the person was married, but legally, she probably is,” he said.

The lecturer’s response was commendable, but he should have immediately notified his employer.

Without seeing all the student’s communications with the university staff it was difficult to predict her chances of successfully appealing her suspension.