No tolerance for sexual harassment in the workplace

20 Nov 2015
Author: Andrea Twaddle
 
Christmas parties are a great time to get into the holiday spirit. However, wise employers take care to minimise the risk of Christmas party antics that could get out of control. Unfortunately, sexual harassment is one type of misbehaviour that can be fuelled by alcohol and the excitement of the festive spirit, combined with an unfamiliar social environment outside the workplace.

There are many misconceptions about what constitutes sexual harassment. The cliché of an employer or manager making sexual advances or an assault on a junior is but one example. More commonly, sexual harassment involves insidious acts and comments of a sexual nature being made, coupled with an abuse of power, or lack of employer willingness to address issues of workplace culture.

There should be no debate that workplace harassment of any kind is offensive. It is illegal and the courts have reinforced the view that it should not be tolerated.

Workplace harassment will usually have a corrosive effect on a workplace. It affects morale and staff turnover; damages interpersonal relationships; impacts on productivity and profit; and will often result in compensation payments being made. Ultimately, there will be likely damage to the reputation of individuals and the employer organisation.

What is sexual harassment?

What constitutes sexual harassment may include the use of sexual language, physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or is sensitive to that employee, and that by either its nature or through repetition, has a detrimental effect on the employee’s employment, job performance or job satisfaction. Employers should be mindful that verbal attacks which harass or hurt the individual are just as significant as physical advances. What amounts to sexual harassment will be viewed objectively, considering whether the conduct was unwelcome or offensive, from the perspective of the complainant.

Employers are responsible for setting the example of what is acceptable workplace culture. The CERA Chief Executive resigned from his position earlier this year after allegations surfaced that he had made inappropriate workplace jokes that there should be a “visible G-string Friday”, had given unwelcome hugs and initiated suggestive behaviour towards a female employee. The public aftermath of these allegations provided an insight into the culture of underlying sexism that is present in many New Zealand workplaces.

Proactive avoidance of sexual harassment in the workplace

It is an employer’s responsibility to take reasonably practicable steps to ensure that employees have a safe and healthy work environment. While workplace policies should set the tone of expectations in the workplace, that culture will be influenced by the conduct and behaviours that managers, staff, contractors and customers bring to the environment. The work environment should be free from intimidation and hostile behaviour. The higher the level of sexual harassment tolerance, the harder it is for an individual to raise concerns. Accordingly, it is critical that incidents of harassment are addressed promptly. Where they are not, the culture can become institutionalised and increasingly difficult for the employer to address in an effective manner. Good management will enable an enjoyable workplace environment where staff can relish some “banter” and dynamic discussion, but a clear line is drawn on inappropriate behaviour.

Dealing with a complaint

When an employer receives a complaint of sexual harassment, it must be investigated in a full and fair way. Given the sensitive nature of an allegation of sexual harassment, confidentiality associated with that investigation and any resolution to the complaint will be crucial.

Minimise risks at the Christmas work party

Employers should lead by example the desired culture of their workplace. Workplaces should be safe places for employees, free from harassment. When planning for the work Christmas party this year, employers should remind staff in advance the expectations of their behaviour. Take simple steps such as ensuring plenty of food and non-alcoholic beverages are available, don’t serve intoxicated individuals, and ensure the availability of a safe ride home. Setting the tone should help to create a collective responsibility in ensuring that Christmas parties are memorable for all the right reasons.

Article by Andrea Twaddle and Gabby Gatland

 
 
 
No tolerance for sexual harassment in the workplace
About the Author
Andrea Twaddle
Andrea is an experienced specialist employment lawyer and Director at DTI Lawyers. She advises on contentious and non-contentious employment law issues, including privacy, and health and safety matters. Andrea is AWI-CH qualified, and undertakes complex workplace investigations. She is a former Council Member at the WBOP District Branch of the Law Society, and Coordinator of the WBOP Employment Law Committee. Andrea is a regular commentator on employment law issues and is frequently sought as a presenter at client and industry seminars, as well as for the provision of advice to other lawyers, professional advisors and leadership teams. You can contact Andrea at andrea@dtilawyers.co.nz