Sexual Harassment At Work
If a third of our life can be spent at work, it is not surprising that workplaces may be hotbeds for affairs, bullying, discrimination, racism, power plays and subtle clandestine peccadilloes. Employment Law can come into play with the more unseemly goings on at work.
Sexual harassment is one such workplace legal concept. It was pinched from the U.S in the early 1980’s, and developed in our own Kiwi way. It provides redress for workers against abuse by bosses, workmates or customers.
I have seen confident able women have their self-esteem shattered and reduced to sleepless neurotics from the uncalled for attentions of crude men – often in power situations. The reverse also happens- men lose a sense of worth from unwelcome attentions of women – classically illustrated in that marvelous Demi More and Michael Douglas movie “Disclosure”. It does not stop here. I have come across men harassed by men, and also women physically threatened by women at work. There are also those marginal cases of opportunistic workers trying to extort money off employers.
What is sexual harassment?
The law in summary defines sexual harassment as:
“requests for sexual intercourse, sexual contact, or other form of sexual activity which contains- a promise of preferential treatment, or a threat of detrimental treatment, or a threat about the present or future employment status”
or ( and this is the more tricky bit)
“using words of a sexual nature; or physical behaviour of a sexual nature, that subjects the worker to behaviour which is unwelcome or offensive and which is either repeated or of such a significant nature that it has a detrimental effect on the workers employment, job performance, or job satisfaction.”
If you are sexually harassed the law can help.
If your employer has an internal sexual harassment procedure you may choose to use this. Otherwise you have a choice of seeking help from a union, employment relations consultant or lawyer in the yellow pages, or contacting the Human Rights Commission on 0800 496 877. The Human Rights procedure differs from the Employment Tribunals. It emphasises conciliation and damages are unable to be awarded. Complaints more than three months old have usually to go the Commission.
Name suppression is often granted. In a recent Tribunal case where suppression was not an issue, the respected unionist Ross Wilson successfully defended his son and women business partner who owned the El Diablo Expresso Bar. Michael Ortega a café worker, amongst other allegations contended he was sexually harassed by the two Expresso Bar Owners. He argued calling him a “wanker” “arsehole” and “fucking dick” were sexual harassment. The Tribunal did not agree saying this slang did not “indicate a lascivious intention”.
Another allegation concerned an incident with a cucumber between ones legs which Mr Ortega’s lawyer submitted was “simulating sodomy”. Again the Tribunal Adjudicator Fiona McMorran found whilst this was not appropriate behaviour, it was not sexual harassment in terms of the legal definitions outlined earlier (eg. not repeated). The Adjudicator emphasised these incidents had to be put in the context of the catering industry and the fact that Mr Ortega had “greater life experience” than the younger expresso bar owners.
As always, each case has to be judged on its own facts in the context in which it occurs.
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