How to bring a sexual harassment claim against your employer in New Zealand

Introduction

If you have been sexually harassed in your workplace, you can take a personal grievance claim to the Employment Relations Authority. 

An employee may bring a personal grievance on the grounds of sexual harassment where:

• an employer or employer's representative has subjected the employee to sexual harassment or
• a fellow employee or one of the employer's customers or clients has subjected the employee to sexual harassment, and the employer has failed to take practical steps to deal with the conduct (see below)

Sexual harassment by employers or their representatives

An employee may bring a personal grievance against his or her employer for sexual harassment if the employee is requested by the employer to engage in sexual activity, or if the employer engages in unwelcome or offensive behaviour of a sexual nature, as follows.

• Requests for sexual activity. An employee is sexually harassed when an employer or employer's representative makes a request, directly or indirectly, of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains:
  • an implied or overt promise of preferential treatment in that employee's employment, or
  • an implied or overt threat of detrimental treatment in that employee's employment, or
  • an implied or overt threat about the employee's present or future employment status
• Unwelcome or offensive behaviour. An employee is sexually harassed when an employer or employer's representative, by using language (written or spoken), visual material or physical behaviour of a sexual nature, subjects the employee to behaviour:
  • that is unwelcome or offensive to that employee (whether or not this is conveyed to the employer or representative), and
  • that is either repeated or is so significant that it has a detrimental effect on the employee's employment, job performance, or job satisfaction

Sexual harassment by fellow employees and others

An employee also has a right to bring a personal grievance claim against his or her employer for failing to deal properly with sexual harassment by fellow employees, as follows.

If a fellow employee or one of the employer's customers or clients makes a request for sexual activity or engages in unwelcome or offensive behaviour towards the employee (see the detailed definitions above), the employee may complain about this to the employer or to a representative of the employer. The complaint doesn't have to be in writing.

The employer or representative must inquire into the complaint and, if satisfied that it is well founded, must take whatever steps are practicable to prevent the request or behaviour being repeated.

If after a complaint has already been made there is further sexual harassment towards the complainant from the employee who was the subject of the complaint, and the employer hasn't taken practicable steps to prevent the repetition of the harassment, the employee can take a personal grievance claim against the employer as if the request or behaviour in question were that of the employer.

The Courts' approach to sexual harassment claims

The approach of the courts has been to find that there has been sexual harassment when the workplace can be considered to be "poisoned". However, in reality this can be quite difficult to define and even harder to prove. The courts will not lightly find that there has been sexual harassment.

In accordance with the two types of "sexual harassment" stated in the statutory definition above, the courts have held that sexual harassment can fall into two categories: sexual coercion or sexual annoyance. "Sexual coercion" refers to attempts to coerce a subordinate to grant sexual favours by linking job benefits to sexual favours, whereas "sexual annoyance" is broadly defined as sexually related conduct.

In cases of sexual annoyance, assessing whether the complainant has been subjected to behaviour serious enough to justify discipline involves an examination of the language or conduct complained of. It must be of a sexual nature that can be regarded as unwelcome or offensive. The court must be able to find that the harassing behaviour has had a detrimental effect on the complainant: this may be in the form of causing embarrassment, offence or emotional distress.

The courts have been prepared to find there has been a constructive dismissal of the complainant if the complainant can show that the conduct in question caused him or her to resign.

Complainant's reputation and experience is irrelevant

The Act expressly states that, when the merits of a complaint are being assessed, the complainant's sexual reputation or experience is irrelevant.

Discipline of fellow employees who are the subject of a complaint

Cases involving sexual harassment by fellow employees have been dismissed on the grounds of breaches of procedural fairness, which requires that an alleged offender be informed of the existence and nature of the complaint. This type of failure may support a claim by the fellow employee of wrongful dismissal (see How to bring a wrongful dismissal claim against your employer).

The courts have held that the dismissal of an employee cannot be based on previous actions that if considered together with the current complaint would make it more serious.

It may be that the dismissal of the offending employee is inappropriate in the circumstances. There are other options available that may be more suitable, such as warnings, final warnings, counselling or requiring an apology.

The New Zealand Employment website has an additional article on Sexual and Racial harassment.

Other New Zealand Employment Law resources

• The New Zealand Government website Employment is an additional useful guide.
   
• The NZ Employment Relations Authority assists you further seek assistance in resolving employment related issues. It is an independent body.
   
• The NZ Employment Court allows you to challenge a decision made by the Employment Relations Authority.
   
• The NZ Human Rights Review Tribunal assists with issues of human rights and privacy at work.
   
• The NZ Employment Relations Authority has a database of previous cases for review.
   
• The NZ Government website Employment has a free tool for creating employment agreements - help yourself.
   

Cautionary notes

The courts' approach is to treat each allegation of sexual harassment as new conduct constituting a breach and justifying a personal grievance claim.

It is essential that you seek the services of a lawyer experienced in employment law before taking action against an employer or fellow employee who has subjected you to sexual harassment in your workplace.