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Sexual harassment is a systematic and significant problem for New Zealand businesses. Consequently, employment law treats this issue extremely seriously. As an employer, you must understand what sexual harassment is and how to recognise it in your workplace. Likewise, you must be aware of your legal obligations to stamp it out. Sexual harassment carries legal implications under employment law and health and safety law as a harmful hazard for workers. 

This article will set out what sexual harassment is in New Zealand under employment law. It will also include examples of sexual harassment and briefly detail sexual harassment as a health and safety risk.

What Is Sexual Harassment?

Sexual harassment is a pernicious and harmful problem throughout New Zealand workplaces of all kinds. Therefore, you must adopt a zero-tolerance to sexual harassment. 

Likewise, employers have a variety of obligations concerning different stages of sexual harassment. Such stages include:

Under NZ employment law, an employee has been sexually harassed if either their employer or a representative of their employer asks the employee for sex or any kind of sexual activity. There is an added layer of the employer:

  • promising, explicitly or implicitly, better treatment at work, or
  • threatening, explicitly or implicitly, worse treatment at work or the employee’s job security.

Sexual harassment also involved subjecting an employee to behaviour that they do not want or is offensive to them. This behaviour must be so significant or repeated that it has a negative effect on their work, job performance or job satisfaction. Also, a person can display such behaviour through: 

  • the use of sexual language, either oral or in writing; 
  • the use of sexual visual material (e.g. pictures, diagrams, photos, videos, amongst others); or
  • physical behaviour that is sexual in nature.

Essential Points on Sexual Harassment

There are a few key points to note about how the law defines and treats sexual harassment in New Zealand. 

Firstly, whether someone’s conduct constitutes sexual harassment or not is viewed objectively. It is not from the perspective of the person whose conduct is in question. Instead, the law objectively considers whether the conduct is unwelcome or otherwise offensive from the complainant’s perspective.

Additionally, sexual harassment does not need to be obvious and large-scale in nature. However, there are unfortunate situations where it can be. Sexual harassment can be subtle and take many different forms. It can be committed by people of any gender, to people of any gender. 

Examples of Sexual Harassment

There is no complete list of the behaviour or conduct that can amount to sexual harassment in New Zealand workplaces. The law will consider different situations in their relevant context against the definition of sexual harassment. However, there are some common examples of behaviour that amount to sexual harassment. These include:

  • unwanted comments or teasing about an employee’s romantic life or sexual activities;
  • sexual jokes;
  • offensive comments about sex directed at an employee; 
  • offensive gestures; 
  • physical contact like touching or groping;
  • persistent requests or unwelcome social invitations; 
  • romantic or sexual demands; 
  • threats about detrimental treatment if the employee does not have sex with them; 
  • hints about preferential treatment if the employee has sex with them; 
  • inappropriate sexual videos or other media; and 
  • sexual assault of any description.

Of course, these examples differ widely in severity. However, they will all amount to sexual harassment in most situations under the law in New Zealand. As an employer, you must be aware of unacceptable behaviour under the law. Resist the temptation that employees should ignore seemingly low-level sexual comments or ‘banter’. Further, take proactive steps, including a sexual harassment policy and educational processes. Ultimately, you want to ensure your workplace takes a zero-tolerance approach to sexual harassment.

Sexual Harassment as a Health and Safety Risk

It is also essential to recognise that sexual harassment is a systemic health and safety risk. Put simply, sexual harassment can be harmful to the health of your employees. Hence, your business should take a hazard identification and elimination approach like with other health risks. In addition, your business is a PCBU with a responsibility to take “reasonably practicable steps” to ensure the health and safety of your workers. 

Since sexual harassment is a common and well-known source of harm, the law expects your business to have processes in place to deal with it effectively. There are several resources online, including template policies through WorkSafe, that can assist you and your business. 

Key Takeaways

Sexual harassment is a threat to your workplace and the health and safety of your employees. As a result, all businesses must take this issue seriously. Employment law in New Zealand defines sexual harassment broadly, with several different behaviours captured. For example, if an employee subjects another employee to significant offensive, unwanted, and sexual behaviour in some direct or indirect way, this will constitute sexual harassment. Sexual harassment is also a health and safety risk, and so your business must approach this issue sufficiently. 

For more information about workplace sexual harassment in New Zealand, contact LegalVision’s employment lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

What is sexual harassment?

In New Zealand, the law defines sexual harassment to encompass many different behaviours. These include when an employer or representative of an employer asks an employee for sex or any kind of sexual activity, with some promised benefit or threat at work. It also includes when they subject an employee to sexual behaviour that they do not want or is offensive to them. Also, there is an added layer that the behaviour is repeated or is so significant that it negatively affects their work.

What if the person alleged of sexually harassing another employee did not intend to sexually harass them?

It does not matter what the person whose conduct is in question believed about their behaviour. The key question is whether the conduct was offensive or unwanted and detrimental to the person receiving the conduct.

Is sexual harassment a health and safety issue?

Yes, sexual harassment is a well-known and recognised risk to health and safety. Hence businesses must treat this issue in that vein to comply with health and safety laws.

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