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New Zealand businesses should not tolerate sexual harassment. Sexual harassment is a health and safety hazard, misconduct or serious misconduct on the part of the harasser. It can have damaging impacts on the rest of your employees and business. It is important to: 

  • know the legal definition of sexual harassment;
  • be able to identify examples; and 
  • know what to do if an employee makes an allegation of sexual harassment.

This article will explain what sexual harassment is and how to respond to sexual harassment allegations.

What Is Sexual Harassment?

There are different understandings of what the term ‘sexual harassment’ actually means and what it includes. An employer or someone who represents that employer will have sexually harassed an employee if they ask the employee for sex, sexual contact or any other sexual act, with a:

  • promise of better treatment in their employment; or
  • a threat of worse treatment, or about current or future job security.

Sexual harassment also includes when someone at your business subjects an employee to behaviour that they do not want or is offensive to them. This can be directly or indirectly, whether or not they communicate this to the person at the time. The behaviour must be so significant or repetitive that it has a negative effect on their job performance or satisfaction. This can include behaviour that uses sexual:

  • language;
  • visual material (e.g. pictures, diagrams, photos, videos); or
  • physical behaviour.

The law looks at whether the behaviour is sexual harassment or not objectively. This means that whether the conduct was unwelcome or offensive is considered from the perspective of the person complaining about the conduct, not the person whose conduct it was. Whether the person making the complaint tells the other party that their behaviour is unwelcome at the time is not relevant to whether the act was sexual harassment or not.

Some common examples of sexual harassment to watch out for in your business include:

  • personally sexually offensive comments;
  • sexual jokes;
  • unwanted comments about a person’s sexual activities or romantic life;
  • offensive gestures;
  • physical contact such as patting, pinching or touching; and
  • persistent and unwelcome social invitations (including emails) from workmates;

How To Respond To A Sexual Harassment Allegation

It is important to respond quickly to allegations of sexual harassment, usually by beginning an investigation. This should be a fair process where both the complainant and the person alleged to have sexually harassed someone have an opportunity to give their side of the story. They should also have the opportunity to get support, whether that is a:

  • support person; or
  • legal adviser.

Even if an employee does not want to pursue a personal grievance about sexual harassment, you should still investigate the allegations. Behaviour that amounts to harassment may be misconduct.

You should think about what you need to do to ensure you are keeping the workplace safe for the person who has alleged sexual harassment. If the complainant and the person alleged of sexual harassment work together closely, it may be a good idea to have them work in different locations while you investigate. In serious circumstances, you may need to consider suspending the person who is facing the sexual harassment allegation.

Key Takeaways

Sexual harassment covers a range of different harmful behaviours. These include when an employer, or a representative of the employer, asks an employee for sex with either a promise of favourable treatment or a threat. It also includes many different ways in which another employee faces the behaviour. This includes making sexual connotations that that employee finds offensive. When there is an allegation of sexual harassment, your business should investigate proactively and fairly. You need to ensure that the person who suffered the harassment feels safe at work. If you want to know more about responding to a sexual harassment allegation, contact LegalVision’s New Zealand employment lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

How should a business respond to an allegation of sexual harassment?

They should investigate to ascertain what occurred, ensure that the process is fair and reasonable to all parties, and support affected employees, so they feel safe at work.

What if the alleged harasser says they were flirting or meant it as a joke?

This is a commonly cited but irrelevant point in terms of whether the behaviour was sexual harassment or not. Whether the conduct was unwelcome or offensive is considered from the perspective of the person complaining about the conduct.

Can jokes about a person’s romantic or sex life be sexual harassment?

Yes, these kinds of jokes can be sexual harassment under the law. 

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