Employers must be concerned not only about their own behaviour, they are responsible too for the behaviour of all employees, customers and clients. A sexual harassment complaint can be made if a particular employee finds something sexually offensive, even if other employees are not offended, Some examples are:
- Personally sexually offensive verbal comments.
- Sexual or smutty jokes.
- Repeated comments or teasing about someone’s alleged sexual activities or private life.
- Persistent, unwelcome social invitations or telephone calls from workmates at work or at home.
- Following someone home from work.
- Offensive hand or body gestures
- Physical contact ie patting, pinching, touching or putting an arm around another person’s body.
- Provocative posters with a sexual connotation.
- Sexual assault or rape.
Sexual harassment is legally and socially unacceptable. Taking steps to prevent it – and to deal with it if it does occur – will mean a better work environment for all employees.
Sexual Harassment Provisions
Most sexual harassment complaints relate to workplace behaviour but a complaint may concern behaviour outside the workplace – for example, at a social function – and still be considered work related. For work related sexual harassment to occur the offender must be someone encountered in the course of employment.
Behaviour constituting sexual harassment may vary from rape, at one extreme, to persistent sexual jibes and innuendo to which not all employees may object. Where complaints are of this nature, the decision whether the complaint has substance will depend on whether the behaviour was unwelcome or offensive to the complainant. Whether the behaviour was repeated and the extent to which it can be established that in some way or other the behaviour has a detrimental effect on the complainant’s employment. Since primary responsibility for sexual harassment in employment lies with the employer, employers must ensure all employees know that sexual harassment will not be tolerated. If sexual harassment does occur, there must be someone within the organisation to whom the employee can complain and a procedure for achieving a resolution. No-one is to be subject to discriminatory treatment because a sexual harassment complaint has been made.
It is important to remember that complaints are subjective in character. What matters is what offends the individual, and that person does not have to tell the offender that the behaviour was unwelcome or offensive.
Under the Employment Relations Act all sexual harassment complaints must first be made to the employer in writing. Under the Human Rights Act however, the complainant may go directly to the Human Rights Commission, unless the complaint is about a customer or client. In that case the employer must be given written notice of the complaint with a complaint to the Commission possible only if the employer fails to remedy matters. Complainants must however choose which statute to use. A complaint cannot be taken under both the Human Rights Act and the Employment Relations Act.
The existence of an effective programme or procedure will afford protection against sexual harassment complaints.
Employer Liability
Under the Human Rights Act an employee alleging sexual harassment may make a complaint both about the employer and the offending employee but, in practice, most claims will be directed to the employer. The employer, however, has a defence if he or she can show that reasonably practicable steps have been taken to prevent sexual harassment (or unlawful discrimination) or to deal with it if it occurs.
That the employer’s are also liable for the behaviour of customers or clients – over whom as a general rule he or she has little or no control – is a complicating factor. To avoid liability the employer must take all practicable steps to prevent a repetition of the alleged offence; if the sexual harassment is repeated, the employer becomes responsible. The extent of liability is then judged on the effort made to prevent sexual harassment. Efforts to reduce or ameliorate the behaviour will not remove the liability but will be taken into account in deciding what remedy will be granted and what penalty, if any, will be imposed.
Employers are clearly responsible for the work environment and if this is intimidating, hostile or offensive, liability will accrue whether or not sexual harassment is condoned by management or the employer.
A copy of the Restaurant Associations Guideline to Dealing With Sexual Harassment is available hereby logging on to the members-only section of this website. | 
