Sexual harassment in the workplace is a serious issue that can have significant effects on an employee’s mental and emotional wellbeing.
In New Zealand, the law is clear – sexual harassment is illegal and should not be tolerated in any workplace. Employees who experience or witness sexual harassment have the right to take action and seek support.
This article covers what constitutes workplace sexual harassment, how to recognise it, what steps employees can take, and how the law protects employees from such behaviour.
What is Workplace Sexual Harassment?
Sexual harassment in the workplace is defined as any unwanted or unwelcome behaviour of a sexual nature that creates a hostile, intimidating, or offensive work environment.
The harassment can be physical, verbal, or visual, and it can come from a colleague, supervisor, manager, or even a client or customer.
The key element in sexual harassment is that the behaviour is unwanted.
It’s not necessary for the behaviour to be overly aggressive or forceful to be considered harassment – subtle or less ‘obvious’ acts, like inappropriate comments or jokes, can still constitute harassment if they make the recipient feel uncomfortable or demeaned.
Examples of workplace sexual harassment include, but are not limited to:
Unwanted physical contact: Groping, inappropriate touching, or any physical advances.
Sexual comments or jokes: Making suggestive remarks, telling inappropriate jokes, or commenting on someone’s appearance in a sexual way.
Inappropriate messages: Sending sexually explicit texts, emails, or messages on social media.
Displaying offensive material: Posting or displaying sexually explicit images, posters, or materials.
Unwelcome requests for dates or sexual favours: Repeatedly asking someone out or making sexual advances despite clear refusal.
Sexual harassment can also be more subtle, such as spreading rumours, making someone feel uncomfortable because of their gender/sexual orientation, or creating a sexually charged work environment.
The Legal Framework
In New Zealand, sexual harassment is prohibited under the Human Rights Act 1993 and the Employment Relations Act 2000.
Both pieces of legislation are designed to protect employees from any form of discrimination, including sexual harassment, and ensure that the workplace remains a safe and respectful environment for all employees.
Human Rights Act 1993
The Human Rights Act 1993 makes it unlawful to treat someone unfairly because of their gender, sexual orientation, or any other protected characteristic.
Under this Act, sexual harassment is specifically recognised as a form of discrimination. This means that if an employee experiences sexual harassment, they are legally entitled to seek a remedy, including lodging a complaint with the Human Rights Commission.
2. Employment Relations Act 2000
The Employment Relations Act 2000 also provides protections for employees in the workplace. It requires employers to take all reasonable steps to provide a safe and healthy working environment, which includes preventing and addressing sexual harassment.
Employers are required to investigate complaints of harassment and take appropriate action, such as disciplining the person responsible, or making changes to the work environment to prevent further harassment.
What are your Rights if you Experience Sexual Harassment?
Employees in New Zealand who experience sexual harassment have several rights under the law, and it’s important to understand these protections:
1. The Right to a Safe Work Environment
Employees have the right to work in an environment free from harassment. If the workplace environment is hostile or unsafe because of sexual harassment, the employer is legally obliged to take action to address the situation.
2. The Right to Report Sexual Harassment
If you experience sexual harassment, you have the right to report it to your employer. Employers are required by law to investigate harassment claims and take appropriate action. It is also illegal for an employer to retaliate against an employee who has made a harassment complaint.
3. The Right to File a Personal Grievance
If your employer does not address the sexual harassment or if they retaliate against you for reporting the behaviour, you have the right to file a personal grievance.
A personal grievance is a formal complaint that can be made if you believe you have been treated unfairly or unlawfully in your employment.
A personal grievance can be lodged with your employer within 12 months of the incident or issue occurring. If the grievance is not resolved, it can be taken to mediation, or the Employment Relations Authority (ERA) for further resolution.
4. The Right to Seek Compensation
If sexual harassment causes you emotional, physical, or financial harm, you may be entitled to compensation for any loss or damage you have suffered. This can include compensation for distress, medical costs, loss of wages, or any other harm caused by the harassment.
What should you do if you Experience Sexual Harassment?
If you believe you are experiencing sexual harassment in the workplace, there are several steps you can take to protect yourself and address the situation:
1. Keep a Record
It’s important to keep detailed records of any incidents of sexual harassment, including dates, times, locations, and what was said or done. This documentation will be helpful if you need to report the harassment to your employer or if you decide to take legal action. You may also want to keep copies of any communications, such as emails or text messages, that document the harassment.
2. Stand your Ground
If you feel safe doing so, tell the person responsible for the harassment that their behaviour is unwelcome and needs to stop.
Sometimes, individuals may not realise their behaviour is inappropriate, and reaffirming that it is harassment could help stop it. However, if you do not feel comfortable confronting the harasser, you do not have to.
3. Report to Your Employer
You should report the harassment to your employer, as they have a legal duty to address the issue.
If harassment is happening from a colleague or supervisor, it’s crucial to let your employer know. Employers must investigate complaints of harassment and take appropriate steps to remedy the situation. Most workplaces have specific policies or procedures for reporting harassment, so be sure to follow the appropriate steps in your workplace.
4. Seek Emotional Support
You may want to talk to someone you trust about what you are experiencing, whether it’s a colleague, union representative, or a friend/family member. If you feel that the situation is impacting your wellbeing, consider seeking support from a counsellor or mental health professional who can help you navigate the emotional impact of harassment.
5. File a Grievance
If your employer does not take the issue seriously or retaliates against you, you can file a personal grievance within 12 months. For further advice, consult with an employment relations specialist. They can inform you of your rights, and represent you in further proceedings.
Example Scenario
Anna, a receptionist at a corporate office in Auckland, has been experiencing unwanted advances from her supervisor. He frequently:
Makes inappropriate comments about her appearance.
Sends suggestive messages after work hours.
Touches her shoulder and back despite her being uncomfortable.
Anna reports the issue to HR, but they dismiss her complaint, playing it off as friendliness and claiming he’s ‘just a friendly guy.’ A month later, she is given a poor performance review, and denied a previously discussed promotion.
What makes this unlawful?
1. Sexual Harassment: Under the Human Rights Act 1993 and the Employment Relations Act 2000, sexual harassment includes unwelcome sexual behavior that makes the workplace offensive or intimidating.
2. Employer’s Failure to Act: Employers in New Zealand are legally required to investigate and address sexual harassment complaints.
3. Retaliation: Punishing Anna for speaking up by denying her promotion.
Legal Action
Anna can:
1. File a personal grievance with the Employment Relations Authority (ERA) within 12 months.
2. Lodge a complaint with the Human Rights Commission.
3. Seek compensation for emotional distress and lost career opportunities.
Conclusion
Sexual harassment in the workplace is a serious issue, and employees are protected by law from such behaviour. If you have experienced sexual harassment, you’re not alone. It is important to know your rights, report the behaviour to your employer, and seek professional support to ensure your wellbeing, and help you heal moving forward.
Mahi Law can Help!
Our expert team will help you understand your employment rights, and pursue resolution (including compensation) through various channels, such as: Without prejudice negotiations, mediation, the Employment Relations Authority, or Employment Court if required.
We also work on a no-win, no-fee basis – if we win your case, your employer covers the costs.
Get in touch for a free consultation! You can fill out this form – or contact us at [email protected], or 027 425 2231.
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