Sexual harassment: An employment lawyer explains your rights in the workplaceby Mai Chen
Anyone who speaks up about sexual harassment empowers victims past and present, and true leadership requires bosses to create a no-tolerance culture.
They usually call either because they have already been dismissed or they are concerned that they will be if they complain. But they have had enough of the sick workplace culture and want out; they have no faith that their allegations will be properly investigated or that the culture will change. They tell me that everyone knows the harassment is taking place, but is wilfully blind. These women do, however, want to be able to continue to work in the industry so they do not want their careers wrecked by being defamed, or demonised as a “troublesome woman” on the way out.
Sadly, Weinstein is just one more name in the list of famous people accused of harassment: Bill Cosby, Roger Ailes, Donald Trump. The New Zealand Human Rights Commission reported 93 unlawful discrimination enquiries and complaints in the 2015/2016 year. However, of greater concern is the number of complaints that remain unreported. All of my cases have resulted in confidential settlements.
Just a few days ago, I received a call from a senior woman in one industry alleging harassment. What happened to her is serious. The allegations are of breaches of the Crimes Act, and not just the Employment Relations Act and the Human Rights Act. She wants her (very famous) harasser to stop blaming his behaviour on the substandard work he is claiming that she did for him. She wants to be vindicated. She is concerned about her hard-won professional reputation being shredded and feels she is being defamed by the harasser.
This is a particular problem in New Zealand because the country is so small, and within professions, everyone knows everyone else. Many victims tolerate sexual harassment because they are afraid that if they speak up it will limit their career prospects. Victims feel trapped in situations they cannot escape. Paltrow spoke for many silenced victims when she said that the person doing the harassing was “in charge of my destiny”.
As a nation, we pay lip service to the concepts of diversity and inclusion, but we need to focus on how we might change workplace culture so that systemic or any sexual harassment is unacceptable. There is no point recruiting women if we cannot create a sustainable work environment where they can flourish.
Thus a key measure of the success of diversity and inclusion must be that victims can complain and get the issue resolved without being pushed out and that sexual harassment decreases in work places; that there are safe systems for allowing victims to speak out, while preventing false claims.
Sexual harassment is not just a “women’s problem” and not only male bosses are unresponsive to allegations against themselves or their staff. Men get sexually harassed also, and some women bosses may do the harassing or not be properly responsive and turn a blind eye. What is unacceptable is that anyone gets harassed in this way.
Anyone who speaks up empowers those who are or have been victims. And true leadership requires bosses to say that sexual harassment is unacceptable and to actively create a no-tolerance culture. That is of course what the law requires, but the law has required that for a long time, and yet sexual-harassment cover-ups continue.
I remain hopeful that the very tough sanctions and obligations that apply all the way up the management chain to board directors under the new health and safety legislation will mean sexual harassment is no longer tolerated.
Ensuring the health of employees includes their physical and mental health, and also requires consideration of well-being. The appointment of more women to senior management, chief executive and director roles will also hopefully change the culture.
According to law
Employers have clear legal obligations to properly investigate claims of sexual harassment: the Employment Relations Act and the Human Rights Act both require an employer to inquire into a claim of sexual harassment and, if it is found to be true, take all practicable steps to prevent any repetition of such behaviour; the Employment Relations Act requires both parties in the employment relationship to be active, constructive, and responsive – my emphasis – in establishing and maintaining a productive employment relationship; and the Health and Safety at Work Act requires an employer to ensure the health (including the mental health) and safety of all workers while they are at work.
A case heard by the Employment Relations Authority (ERA) in 2013 (D v E Limited) illustrates these obligations. The authority determined that D, the complainant, was subjected to unwelcome language and physical behaviours of a sexual nature and found that the harassment, by its nature and repetitiveness, had a detrimental effect on her employment.
The employer was not found to be guilty of sexual harassment, which was carried out by her co-workers, but the employer was found to have failed to take all practical steps to ensure her health and safety in the workplace. This was because, although the business had a sexual harassment policy, there was no other material explaining what behaviour could amount to sexual harassment and no induction or other education which included such explanation.
The business failed to tell employees what procedures were available to them if they felt they were being harassed, and there was no regular or periodic reinforcement of the sexual harassment policy.
The ERA found that although the business took some steps to manage the risk of sexual harassment, they did not go far enough to meet its obligations, so it was in breach of its health and safety duties.
The Crimes Act may also apply for sexual violation, assault, false imprisonment and threats to harm.
When it gets personal
My personal experience has mainly been of racially motivated harassment and assaults.
I was driving home when a car came up beside me on the other side of the road and the men inside rolled down their windows and started yelling racial abuse about Asian drivers. I was very frightened; I thought they were going to get out and assault me. I locked my doors.
About three years ago, I was at the Queensgate mall in Lower Hutt when a group of about six youths walked towards me. I did not know them. When I got up close, I could see they were very angry.
There’s a look that people get on their face. You recognise it. It looks like they’ve stood on poo. They were staring at me with hatred and I didn’t know what to do. I tried to walk to the side.
They walked to the side, then they pushed me over. I did not engage. I did not confront or make eye contact. I just picked myself up and walked away from them. I’ve had a lifetime of this.
At a legal seminar I recently attended, a senior woman barrister said she was sick of being discriminated against by male judges when she was up against male counsel on the other side. The other senior female lawyers in the room all applauded in agreement. I was shocked that this issue still resonates so much in the 21st century.
Mai Chen is a managing partner of Chen Palmer Partners and creator of the website myadvice.legal
This is an edited version of an article first published in the October 28, 2017 issue of the New Zealand Listener.
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