Sexual harassment in the workplace is a significant issue. In May 2018, the the New Zealand Law Society published alarming statistics from its Workplace Environment Survey, revealing 1 in 3 female lawyers reported having been sexually harassed at some point in their working life. The survey of 13,662 lawyers, both male and female, revealed that men were also victims, with 5 per cent of male respondents reportedly experiencing sexual harassment over the course of their careers. If the legal fraternity is anything to go by, sexual harassment is a big problem for New Zealand workplaces.
Employees are legally protected from sexual harassment
Under the Employment Relations Act 2000 and the Human Rights Act 1993, employees are protected from sexual or racial harassment meaning that behaviour which amounts to harassment of any kind, may be unlawful and constitute misconduct. That’s why it’s important to treat all allegations of sexual harassment seriously.
Many employers mistakenly believe that if the victim of sexual harassment does not want to lodge a formal grievance, nothing can be done. However, this is far from correct. Employers should immediately take steps to investigate allegations of sexual harassment even if they are made informally and the complainant doesn’t want to go on record.
Sexual harassment investigations require specialist skills
Allegations of sexual harassment can be very difficult to investigate. Because sexual harassment often occurs covertly, there are often no witnesses to corroborate a complainant’s story. An additional consideration is the potential damage caused to a person’s career and mental wellbeing as a result of false or unsubstantiated allegations of sexual harassment. That’s why allegations of sexual harassment need to be handled carefully and with great skill.
When sexual harassment allegations are made against someone in your organisation, your reflex may be to deal with complaints in-house (especially if the person is senior or high profile). However, the benefits of engaging an independent investigator can outweigh the seeming advantage of being able to more fully control the matter internally.
As stated on the Employment New Zealand website;
“An employee is sexually harassed if their employer (or a representative of their employer):
- asks the employee for sex, sexual contact or other sexual activity, with a:
- promise (it can be implied) of better treatment in their employment, or
- a threat (it can be implied) either of worse treatment or about current or future job security
- subjects (either directly or indirectly) the employee to behaviour that they don’t want or is offensive to them (even if they don’t let the employer or the employer’s representative know this) and which either is so significant or repeated that it has a negative effect on their employment, job performance or job satisfaction:
- by using (in writing or speaking) sexual language, or
- by using sexual visual material (eg pictures, diagrams, photos, videos, etc), or
- through sexual physical behaviour.
Sexual harassment can happen to and by someone of any sex. It can be subtle or more obvious.
Whether a behaviour was sexual harassment is viewed objectively, considering whether the conduct was unwelcome or offensive, from the perspective of the complainant.”
- personally sexually offensive comments
- sexual or smutty jokes
- unwanted comments or teasing about a person’s sexual activities or private life
- offensive hand or body gestures
- physical contact such as patting, pinching or touching
There are many other examples which you can check out here. Samples of Sexual Harassment.
Sexual harassment matters are usually highly emotionally charged. A formal investigation can be an enormously stressful prospect for everyone involved. Both parties will often feel extremely vulnerable.
This sense of vulnerability can frequently lead to concerns around the investigation process when an investigation is carried out by someone known to one or both parties, particularly if the investigator is close to either party. There may be a perception of bias around the person conducting the investigation even where no actual bias exists. This perception of bias, can often make it more difficult for the parties to have confidence in the process and accept the outcome of an investigation.
In cases where the victim or perpetrator has a close working relationship with the person investigating, it can be difficult to maintain impartiality and to know when unconscious bias is influencing decision-making.
Aside from the need to maintain confidence in an investigation process and acceptance of outcomes, there is also the issue of confidentiality. How does an investigator maintain confidentiality for the sake of both parties while, at the same time, conducting a thorough investigation?
An external investigator, trained in managing sexual harassment matters, is often the best option when these types of complaints arise. An external consultant will know how to conduct an in-depth investigation in a sensitive and confidential manner, giving both parties confidence in the process.