It is the topic of the year, and some say deservedly so. Appropriate treatment of one person by another is a cornerstone of a fair working environment, and as well as dealing properly with incidents as they arise, a workplace must strive to create a culture of respect amongst staff. This can be challenging where there are systemic power imbalances (like all hierarchical organisations).
Dealing with sexual harassment issues in the workplace is exceptionally challenging. While accepting that perpetrators of abuse must be stopped, our cultural distaste for prying into what is often considered someone’s “private life”, and both the aggressor and the victim’s right to a fair process make it hard to find an outcome that meets the “justification” test for both parties.
Starting Point
The starting point is that every person is entitled to work in a safe environment. The Health and Safety at Work Act requires employers (and others) to take all reasonably practicable steps to identify hazards and then manage them to prevent harm to people. The behaviour of one person to another is specifically recognised as a hazard. So, employers should have policies dealing with how staff treat each other.
It is a reality of adult life that many people form relationships at work, including consensual sexual relationships. Flirting and other types of intimate behaviour are an ordinary precursor to such relationships. The challenge for an employer is where to draw the line.
At one extreme, the employer may have a black line “no consorting” rule. That is, the employer may say that employees are forbidden from any type of non-professional relationship with colleagues. In my view, this would likely create a very sad and disconnected workplace.
The middle ground may be to forbid intimate relationship across certain groups where there is a real risk of power imbalance (ie managers vs crew), or to require employees to declare close relationships with other staff (this is common in industries that handle sensitive information – eg law or banking). The problem with these policies is that it can be very hard to figure out where the line sits – eg must employees declare that they intend to have dinner together, or is it only when they commit to a relationship that the declaration is required.
At the other extreme, and most common, is for employers to have a “no harassment” rule. This approach recognises that employees might want to develop personal relationships, but requires employees to meet appropriate standards of decency.
Enforcing Employer Policies
As many have learned, there are considerable difficulties with this approach too. The greatest difficulty is that each person has a different threshold – so behaviour that is acceptable to one person is completely unacceptable to another. A person can not be expected to know each person’s limits, so attempting to initiate a relationship with a person always risks harming them, and therefore “harassing”.
I pause here to observe that there are some behaviours which clearly cross the line. However, before that point there are dozens of actions which may or may not be sexual harassment, depending on the target’s disposition, culture and personality.
When addressing sexual harassment issues, the Courts tend to accept this difficulty, and therefore look for a point where the victim has complained or asked the harasser to stop. This is an imperfect approach, because it does not account for the effect of a power imbalance or other matters that might make a victim afraid to speak up. However, for fairness reasons, I think it is the only workable response.
Justification
Without minimising the victims experience, or their rights in the workplace, an alleged harasser who is an employee is also entitled to be treated by the employer in a fair and reasonable manner. The Employment Relations Act obligation of good faith requires an employer who is proposing to make any decision that may have an impact on an employee (including an abuser), to provide that person with information relevant to the decision and an opportunity to respond. The employer must take that response into account before making any decision. It is very rare for the Courts to endorse a decision to suspend a person from work while an investigation ensues, so it is likely that both parties will have to work together while this process ensues.
Even if it can be said, at the end of the fair investigation process, that person A subjected person B to sexual harassment, which is defined by workplace policy as serious misconduct, this does not necessarily mean that termination is justified. In determining whether a person’s employment should be terminated (the most serious sanction there is), an employer must take into account the “seriousness” of the offence (on some hypothetical scale), the harm caused, the employee’s intentions (which may have been different to how the victim interpreted it), any similar cases and their outcomes, and whether there are any alternatives to dismissal. The employer’s decision can be challenged by way of a personal grievance.
Thoughts for Employers
As already noted, sexual harassment is one of the most difficult workplace issues to manage. Preventative steps are easier than cures, so the best advice is to treat appropriate interpersonal behaviour as key expectations, and be proactive in addressing observable incidents that may lead to concerns. Try to ensure that employees are connected to good people within the workplace, and make reporting of minor incidents (even anonymously) straightforward and recrimination-free. Try to avoid creating working situations where employees are required to work closely with a senior in unusual circumstances (eg after hours, in remote locations), and monitor social occasions. When faced with a complaint, consider seeking independent advice to assess and respond.
