Don't let workplace and sexual harassment affect your business

Anthony Drake, Senior Associate | July 2004

Workplace and sexual harassment is offensive, degrading, inappropriate, threatening and illegal.

It can affect morale and productivity and can be costly, in terms of the breakdown of teams and individual relationships, staff losses, compensation payments, and damage to your organisation's reputation.

As an employer, you are responsible for the work environment - even off site in some situations - and for the behaviour of customers, clients and other employees.

You will be held liable for intimidating, hostile or offensive behaviour in your workplace, whether or not you condone the harassment.

In this newsletter, we explain the definitions of workplace and sexual harassment, and explore what employers and employees can do to prevent and deal with this problem.

Defining workplace harassment

Harassment in the workplace is generally defined as conduct towards an individual which has the purpose or effect of creating a hostile, intimidating or offensive work environment, or of interfering unreasonably with an individual's work performance.

Harassment also includes any form of physical or verbal abuse of such significant character and nature that no person of reasonable sensitivities would be expected to tolerate it in the workplace.

Harassment can occur as a result of a single incident or a longer term pattern of behaviour.

Workplace harassment may include, but is not limited to, the following behaviours:

• Physical contact or violence, coercive or authoritarian behaviour
  
  
• Derogatory or intimidating oral or written statements, either made directly or through a third party
  
  
• Sarcasm and abuse
  
  
• Insulting, threatening or intimidating gestures
  
  
• Repeated, unjustified and unnecessary comments about a person's standard of work or capacity for work to that person or others (bad mouthing)
  
  
• Vindictiveness
  
  
• Pictorial or graphic material that is offensive or obscene, including material transmitted electronically and screensavers
  
  
• Offensive, threatening or abusive communications by oral, written or electronic means, including telephone, computer networks, email or fax
  
  
• Persistent following, either at work or to and from work (stalking)
  
  
• Continual exclusion or marginalisation of a person or group from work assignments, networks, work-related social interactions or normal workplace conversation and interaction
  
  
• Forcing the resignation of an individual (constructive dismissal).

Defining sexual harassment

Sexual harassment can consist of unwelcome sexual advances, requests for sexual favours and other verbal conduct, (i.e. comments on appearance, explicit jokes, etc.) or physical conduct (i.e. touching, rubbing neck or shoulders, etc.).

It?s worth noting that this definition includes a display of sexually suggestive objects or pictures.

Avoiding harassment in the workplace

The first step is to create a work environment that is free from intimidating, hostile or offensive behaviours or actions of any kind.

Make it clear to all employees, in easily understandable terms, that workplace and sexual harassment will not be tolerated and will be dealt with seriously.

Employers should not ignore any complaints of harassment.

What is the employer's role?

An employer is clearly responsible for the work environment.

If intimidating, hostile or offensive behaviour occurs, you will be liable whether or not the workplace or sexual harassment is condoned by management.

Remember: you are liable not only for the behaviour of your employees but also for the behaviour of customers and clients in the workplace environment.

Each case is different

Although most workplace or sexual harassment complaints are made by women against men, there are instances where men have been harassed by women, women by women or men by men.

Irrespective of gender, it is important to remember that some people are affected by situations that have little effect on others.

Equally, some harassers can be stopped in the early stages of harassment while others may prove more difficult to control.

There are many reasons for these differences, including personality type and relative positions of power in the workplace.

Managing workplace culture

The more that a climate of workplace or sexual harassment is condoned, the harder it is for someone experiencing harassment to deal with the problem.

This does not mean that you need to ban friendly banter and light-hearted comments between people.

Rather, the aim should be to eliminate any attacks of a personal or sexual nature, including direct or indirect verbal attacks, which may harass or hurt those who are helpless to prevent or avoid these attacks without some risk to their work situation.

Workplace and sexual harassment is more often an abuse of power or an exploitation of weakness rather than behaviour of a purely sexual nature.

Broken relationship ends in sacking

A recent case illustrates how important it is for an employer to take such complaints seriously.

In a recent Employment Relations Authority case (D v N) - the names of the parties are subject to a suppression order - the Employment Relations Authority found that the employee, Mr D, was unjustifiably dismissed, and a victim of sexual harassment in the workplace.

Mr D had entered into a consensual sexual relationship with Mr Y, also his manager.

This working relationship was contractual in nature. Mr D was paid significant sums of money, and promised assistance in obtaining residency, in exchange for his company.

After approximately a month, Mr D ended the relationship after he was injured by Mr Y.

Mr Y was, by this stage, infatuated with Mr D, and continued to contact him both at home and at work. Mr D confided in another employee, who then complained on Mr D's behalf to Mr W, the owner of the restaurant.

Mr W did not take any action, although it appears that Mr Y was aware that a complaint had been made.

After an incident in which Mr D argued with another manager, he was summarily dismissed by Mr Y.

The Authority held that Mr Y had attempted to pressure Mr D to resume their relationship, and that this amounted to sexual harassment.

Although the episode that led Mr D to end the relationship was outside the employment relationship, the Authority took into consideration the distress that seeing Mr Y after this event had caused Mr D.

The Authority also held that Mr D's dismissal was neither substantively nor procedurally justified.

Mr D's conduct had already been the subject of a warning, and the Authority found that the dismissal was most likely a consequence of Mr D's complaint about Mr Y.

Mr D claimed $100,000 compensation for hurt and humiliation. The Authority found that Mr D had been deeply traumatised by both the harassment and his dismissal, and awarded $60,000 as compensation for hurt and humiliation arising out of both the harassment and dismissal.

Unwanted attentions

Employees who personally experience workplace or sexual harassment should make it clear immediately that the behaviour is unwelcome or offensive.

If the behaviour continues, report the matter to management and make sure that the employee concerned is aware of your actions.

Conclusion

As an employer, you set the tone and culture of your workplace.

Where workplace or sexual harassment has been identified as a risk, employers must decide on and implement control measures to prevent or control the risk.

Preventative measures should be aimed at the source of the risk, and may include a broad organisational response, as well as more targeted initiatives that address symptoms in a specific area.

Employers should ensure a workplace harassment policy is developed and implemented.

Advice and information

Bell Gully's Employment Team can advise you on all types of issues, including preventing and dealing with workplace harassment. Contact the team at the numbers below for more information.