Sexual harassment in the workplace
Sexual Harassment in New Zealand Workplaces: Your Rights and Protections
Sexual harassment in the workplace is a serious issue that affects many New Zealanders. This article provides a plain language explanation of what constitutes sexual harassment under New Zealand law, your rights if you experience it, and the steps you can take to address it. We also highlight the critical choice between taking action against an employer or an individual harasser, and how professional advocacy can help you navigate this complex area of employment law.
What is Sexual Harassment?
Sexual harassment is unwelcome or offensive sexual behavior that is either repeated or serious enough to have a harmful effect on you. Under New Zealand law, specifically the Employment Relations Act 2000 and the Human Rights Act 1993, sexual harassment in the workplace is illegal.
According to the Employment Relations Act 2000, sexual harassment occurs when:
Your employer or a representative of your employer:
Makes a request for sexual activity that contains an implied or overt promise of preferential treatment, or a threat of detrimental treatment, or a threat about your employment status
Uses language, visual material, or physical behavior of a sexual nature that is unwelcome or offensive to you and has a detrimental effect on your employment, job performance, or job satisfaction
A co-worker, client, or customer:
Makes a sexual request or subjects you to sexual behavior that is unwelcome or offensive, and your employer fails to take appropriate action after you've made a complaint
According to the Human Rights Act 1993, sexual harassment occurs when someone (in various contexts including employment):
Makes a request for sexual activity with an implied or overt promise of preferential treatment or a threat of detrimental treatment
Uses language, visual material, or physical behavior of a sexual nature that is unwelcome or offensive to you and has a detrimental effect on you
It's important to note that the Human Rights Act has a broader scope than the Employment Relations Act, covering not just employees but also contractors and volunteers.
Examples of Sexual Harassment
Sexual harassment can take many forms. Here are some examples:
Offensive sexual remarks or jokes in your workplace
Being overlooked for work opportunities or promotion if you say no to your manager's advances
Unwelcome touching, patting, or pinching by your boss, co-worker, or customer
Regular hassling for a date or being followed home by a co-worker
Sexually offensive images in the workplace, including screen savers of a sexual nature
Intrusive questions about your sex life from a co-worker
Being excluded from teams or clubs because you turned down unwanted advances
Important Points About Sexual Harassment
Intention doesn't matter: The law takes an objective approach. Even if the harasser is unaware of how their behavior is affecting you, they can still be held responsible.
One-off incidents can be harassment: If the behavior is serious enough to have a harmful effect on you, it doesn't need to be repeated to be considered harassment.
Your sexual experience is irrelevant: When you complain of sexual harassment, no account shall be taken of any evidence of your sexual experience or reputation.
Protection from victimization: You should not be treated unfairly because you have complained about sexual harassment.
Your Rights and Options
If you believe you are being sexually harassed at work, you have several options:
Direct Approach
If you feel comfortable, you can raise the issue directly with the person involved. Explain the effect their behavior is having on you and ask them to stop. You can have a friend, family member, or other support person with you, or you can do this in writing.
Internal Complaint
If the harassment takes place at work, you can raise a complaint with your manager, HR team, or another appropriate person in your organization. Your employer has a legal obligation to investigate your complaint and take appropriate action.
External Options
You have two main external options for addressing sexual harassment, and choosing between them is a critical decision:
Employment Relations Authority (ERA) - Action Against Your Employer
Under the Employment Relations Act 2000, you can take action against your employer
You can raise a personal grievance with your employer within 90 days of the harassment occurring (or within 12 months specifically for sexual harassment cases as of June 2023, following the Employment Relations Amendment Act)
If the issue isn't resolved, you can take your case to the Employment Relations Authority
The ERA will assess whether:
You raised a complaint of sexual harassment
Your employer investigated the complaint
Your complaint had substance
You were subjected to further sexual harassment
Your employer failed to take steps to prevent further harassment
This pathway focuses on the employer's responsibility and liability
Human Rights Review Tribunal (HRRT) - Action Against Individuals or Employers
Under the Human Rights Act 1993, you can take action against the individual harasser directly
You can make a complaint to the Human Rights Commission
The Commission can provide information, support, and a dispute resolution process
If the issue isn't resolved, you can take your case to the Human Rights Review Tribunal
At the HRRT, you can file sexual harassment claims against individuals, not just the employer. This pathway allows you to hold the actual perpetrator accountable, even if they're a co-worker, client, or customer
Important Decision Point: Once you progress a sexual harassment claim in one jurisdiction (ERA or HRRT), you are barred from raising the same claim in the other jurisdiction. This makes the choice between these pathways one of the most critical decisions in your case.
This decision requires careful consideration of factors such as:
Who you want to hold accountable (the employer or the individual harasser)
The nature and evidence of the harassment
The remedies you're seeking
Your ongoing employment situation
Professional advice from an employment advocate can be invaluable in determining which option is best for your specific situation and maximizing your chances of a successful outcome.
Employer Obligations
Employers have a legal obligation to:
Provide a safe working environment free from sexual harassment
Have clear policies and procedures for preventing and addressing sexual harassment
Properly investigate complaints of sexual harassment
Take appropriate action when sexual harassment occurs
Take practicable steps to prevent the repetition of sexual harassment
Failure to meet these obligations can result in the employer being deemed to have committed a breach of the law.
Recent Case Examples
AKD v Clarence Street Warehouse Ltd [2022] NZERA 255
In this important case, the Employment Relations Authority provided guidance on how sexual harassment claims are assessed:
The employee complained of sexual harassment from her assistant manager
The employer investigated but the employee was unhappy with the outcome
The employee felt she had no choice but to resign
While the sexual harassment claim failed (as no further harassment occurred after the complaint), the employee succeeded in a claim for unjustified dismissal
The employer had failed to provide a safe work environment by not intervening during inappropriate conversations and not reminding employees of the company's expectations
The ERA awarded $30,000 as compensation for hurt and humiliation
This case highlights that even when a sexual harassment claim itself may not succeed, employers still have obligations to provide a safe work environment, and failing to do so can result in successful claims for unjustified dismissal.
How an Employment Advocate Can Help You
Navigating sexual harassment cases can be complex, emotionally challenging, and legally intricate. This is where professional employment advocacy services like Michael May Employment Advocate can make a significant difference:
Expert Guidance on Your Best Legal Pathway
One of the most critical decisions you'll face is whether to pursue your case through the Employment Relations Authority or the Human Rights Review Tribunal. An experienced employment advocate can:
Assess the specific details of your situation
Explain the advantages and disadvantages of each pathway for your particular case
Help you make an informed decision that maximizes your chances of a favorable outcome
Professional Support Throughout the Process
Michael May Employment Advocate offers comprehensive support at every stage:
Initial consultation to understand your situation (at no cost)
Documentation preparation and review
Representation in mediation sessions
Advocacy during hearings
Negotiation of settlements
Ongoing advice and emotional support
Specialized Knowledge and Experience
With 30 years of experience as both an employer and employee, Michael May brings a unique perspective to employment advocacy, understanding workplace dynamics from all angles. This experience is particularly valuable in sensitive cases like sexual harassment, where nuanced understanding of workplace relationships is essential.
Affordable Advocacy
Unlike lawyers who may charge high hourly rates, Michael May Employment Advocate offers services on a performance-based fee structure, making professional advocacy accessible to everyone. For many cases, the initial consultation is completely free.
Conclusion
Sexual harassment has no place in New Zealand workplaces. The law provides strong protections for workers, and there are multiple pathways to address harassment when it occurs. If you experience sexual harassment, remember that you are not alone, and professional support is available to help you navigate the process of making a complaint and seeking resolution.
For more information or to discuss your situation confidentially:
Michael May Employment Advocate: info@mmea.co.nz or visit mmea.co.nz to register for a free initial consultation
Human Rights Commission: 0800 496 877 or infoline@hrc.co.nz
Employment New Zealand: 0800 20 90 20
A community law center: www.communitylaw.org.nz
