Sexual harassment: A warning to employers

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Harvey Weinstein

Disgraced movie producer Harvey Weinstein.

In his opening address at the 2018 Golden Globes, Seth Meyers quipped that “For the male nominees in the room tonight, this is the first time in three months it won’t be terrifying to hear your name read out loud.”

He was, of course, referring to the fallout from the Harvey Weinstein sexual abuse scandal and the domino effect it had on the ‘outing’ of other Hollywood heavyweights, who had used their position of power to abuse others.

Harvey Weinstein, and his ilk, were able to do what they did because they wielded enormous power in their industry and had the ability to make or break a fledgling actor’s career. The power differential couldn’t have been greater, and for the victims of these abusers, they had everything to lose if they didn’t concede to their demands or if they raised allegations against them.

Recently, the New Zealand legal world has been rocked by similar revelations involving Russell McVeagh and the abuse of summer law clerks.

It is highly likely in the #MeToo world we live in, they will be far from the only firm to be named and shamed in the months to come.

Law firms have a very hierarchical company structure with a wide power differential between those at the top, and those at the bottom.

So, are these high-profile scandals going to change the way we view sexual harassment in the workplace?
The answer is, probably not. Employers need to be aware that the allegations made against Weinstein and the Russell McVeagh lawyers appear to be very serious, involving as they do, allegations of sexual assault and potentially, rape.

These are criminal matters and employers need to stay calm and recognise that not every unpleasant male/female interaction is going to fit the description of sexual harassment.

Sexual harassment is expressly defined in section 108 of the Employment Relations Act 2000 as conduct involving an employer or employer’s representative, directly or indirectly requesting sex, sexual contact or some other form of sexual activity.

The request must contain either a promise of preferential treatment, a threat of detrimental treatment or threatens the employee’s future employment.

In addition to that, the section 108 definition includes conduct where an employer or their representative, by use of oral/written language, visual material of a sexual nature or physical behaviour of a sexual nature, subjects an employee to unwelcome or offensive behaviour that “…either by its nature or through repetition, has a detrimental effect on that employee’s employment, job performance or job satisfaction…”
Section 117 of the Act states the same definition but relates to where the sexual harassment is from one employee to another or from an employer’s customer or client (rather than from the employer or employer’s representative). Section 117 also states that any employee subjected to the type of behaviour described in section 108 may raise a complaint with the employer, the employer must investigate and, if the employer concludes that the behaviour or conduct did occur, then the employer must take whatever steps are practicable to prevent any repetition of the behaviour.

All employees have a right to work in a safe environment.

By safe I mean an environment free of sexual harassment and free of false accusations.

It is concerning that the number of sexual harassment cases I have had across my desk in the last three months alone has increased alarmingly, and most of them are without any foundation.

Employers need to fully investigate and carefully consider any complaints of sexual harassment, ensuring that the conduct complained of meets the definition in the Act.

A dismissal for sexual harassment can have a devastating effect on an employee, their family and their ability to obtain any work in future.

In the 2015 case of Key v Programmed Facility Management NZ Limited, an employee was dismissed following a complaint from a female employee.

Mr Key had given her a lift back from where her work car was being serviced and suggested a stop for coffee on the way back to the office.

The female employee refused and later complained that she thought he had taken a longer route back to the office than necessary, so he could prolong their interaction.

Mr Key said it was the best route based on traffic. The female employee also claimed that Mr Key had been very friendly (and she had texted him her cell phone number during the drive) although at times she thought his comments inappropriate. She gave no indication of either the comments or why she thought them inappropriate.

After a brief and procedurally flawed disciplinary process, Mr Key was dismissed for sexual harassment.

The devastating effect this had on him and his family, was reflected in the Authority decision which awarded Mr Key six months’ lost wages and $20,000 compensation for hurt and humiliation.

Where a sexual harassment allegation is upheld against an employee, the employer must then decide what to do about it.

The Act requires the employer to take any practicable steps to prevent reoccurrence of the conduct. There are many options open to an employer other than dismissal, such as a warning, a final written warning and/or training. Disciplinary action needs to reflect the gravity of the conduct, with the severest sanction, dismissal, being reserved for the most serious offences.

The take-home tip for employers is to act fairly and reasonably and not to overreact merely because an employee has raised allegations of sexual harassment.

The high-profile media cases have raised awareness, but have not altered the statutory definition of sexual harassment.

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About Author

Erin Burke

Employment Lawyer and Director at Practica Legal Email: erin@practicalegal.co.nz phone: 027 459 3375