Harassment or Harmless Fun? By Karen Phelps
A woman walks into a pub or club on a Friday night for a quiet drink with friends. She makes her way to the bar and immediately attracts the attention of a male patron who is sitting there. He looks straight at her breasts and without any encouragement brazenly utters:
“They’re pretty nice tits. What size are they then?”
The fact is that some men view such comments as complimentary or just a bit of harmless fun. But what constitutes innocent flirting and when does it cross the line into the realm of sexual harassment?
The Human Rights Act defines sexual harassment as “unwelcome or offensive sexual behaviour that is repeated or significant enough to have a detrimental effect on another person”. It can take subtle forms such as jokes, innuendoes and leering or can be as blatant as inappropriate touching, indecent exposure and even rape. Either way it’s illegal and the perpetrator can be taken to court.
A survey conducted by the Human Rights Commission (the first of its kind in New Zealand), which questioned 1000 New Zealanders aged 18+ over a broad cross-section of people from all ages, ethnic groups, income brackets and areas of the country, indicated that 31% of women and 13% of men had experienced sexual harassment.
“Like a number of women’s issues sexual harassment wasn’t really named or understood until the women’s movement in the mid 70’s - it was just behaviour you had to tolerate. In the early 80’s we started to define it in New Zealand and complaints started trickling in,” explains Commission Human Rights Team Educator Lana Hart.
Sexual harassment has been recognised as unlawful in New Zealand since 1985. This means that it is now against the law under the Human Rights Act and the harasser can be taken to court and sued.
From 1995 - 2000, the Commission dealt with 284 formal complaints of sexual harassment. Most of these cases occurred in the area of employment. The hospitality industry was the industry from which the highest number of complaints came from.
Ms Hart agrees that the definition of ‘unwelcome and offensive’ can be slightly problematic in that it is subjective and depends on what the individual feels rather than the intention of the harasser. In other words what is acceptable behaviour to one person may be totally inappropriate and offensive to another. It is the impact of the behaviour on the complainant rather than the perception or intention of the respondent that is considered in establishing whether sexual harassment has occurred.
Ms Hart contends that contrary to what most people think sexual harassment is not really about sex but rather about power and control. While women may be more likely to be harassed, 13% of men reported they had been harassed.
So how detrimental is it? Typical reactions to sexual harassment for the victim are feelings of anger, embarrassment, fear, frustration, guilt and vulnerability. It can cause health problems and often has an adverse effect on relationships outside the workplace.
“Until recently sexual harassment was often trivialized. Some people would say that women just couldn’t take a joke or it was something just a few feminists were whinging about. But the physical and mental harm that is done to the victim is serious. Sleeping disorders, drug and alcohol abuse, physical disease and breakdown in relationships can be some of the results of sexual harassment for the victim.”
Ms Hart believes sexual harassment also has outside ramifications:
“I believe sexual harassment is a form of violence against women. Certainly it becomes violent when physical harassment is involved and some of the complaints we get are of sexual violence and rape. But while it might not always be outright battering of women it is a type of violence on a continuum that may lead to other types of violence.”
So who is more likely to get harassed? The survey revealed that complainants are usually younger women (more than half of those sexually harassed were 20 years or younger) and their harassers are generally older men with an age gap of at least 17 years. In 72% of the cases reported to the Commission, harassers were in positions of seniority to the victim.
Independent trainer in harassment and discrimination prevention, Jan Eggleton says she has never had anyone admit why they harassed their victim in the first place but suspects it could stem from things like insecurity and conditioning - “men are the bosses and women shouldn’t be in the workplace!” Typical excuses are that they were attracted to their victim, which Ms Eggleton dismisses as “a load of cobblers” saying it is more a question of “sexual bullying to gain power over another person.”
Ms Hart thinks that sometimes the harasser is fully aware of what they are doing while at other times they are surprised that their behaviour could be construed as inappropriate. She believes the fact that men and women have different ideas about what constitutes sexual harassment has something to do with cultural and generational changes society is presently undergoing.
For further information or to make a complaint contact:
Human Rights Commission Infoline
0800 4 Your Rights (0800 496 877)
IS IT A PROBLEM?
A recent assignment for Interclub took me to a club in the Auckland region. Within minutes of walking into the premises I was exposed to sexual comments and innuendo and an unwelcome attempt to get my phone number.
The question I wanted to know was whether my experience was indicative of what women could expect in other chartered clubs. ClubsNZ Manager Operations John Corbett thinks not.
Mr Corbett says that in the ClubsNZ model employment agreement there is a specific section on sexual harassment and he thinks clubs are generally aware of their responsibilities and deal with the problem in-house if necessary.
“Yes, there is a bit of bonking out of school (consensual sex between staff members). With regards to sexual harassment I think women look after themselves better these days and don’t let themselves get into situations like they did ten years ago.”
He suggests clubs need to have an anti-sexual harassment policy in place.
While sexual harassment may not be generally viewed as a problem in clubs it has reared its ugly head several times in the past few years.
One manager Interclub spoke to had experienced two cases of sexual harassment – one involving a customer harassing a staff member and the other involving a man high up in the club hierarchy harassing a staff member. The club manager revealed that the member was suspended for six months for making a sexually offensive comment. He appealed the decision but the Clubs Appeal Board decided it was appropriate to extend his suspension to two years. The other case, which also involved sexually offensive comments, was resolved in-house resulting in a confidential resolution between the harasser and victim.
“Sexual harassment is viewed very severely by clubs. It’s just not acceptable as clubs are supposed to be a safe environment. If you do report it you’ll probably find you’ll get an instant reaction at Clubs that you wouldn’t necessarily get elsewhere,” says the manager who did not wish to be identified.
Ms Hart says that while most of the Commission’s complaints about sexual harassment relate to employment, sexual harassment in a social situation is harder to prove and prosecute.
“It’s a difficult one - basically sexual harassment in a social situation is not covered by the Human Rights Act. Another problem is that in order for the Commission to act on a complaint they require the name and details of the harasser, which may not always be possible in such situations. However, where possible management should try and do something about a harasser if somebody complains. A complainant could also go to the police under the Crimes Act.”
Sexual harassment can cause major disruption to a workplace and can be costly for the employer as the majority of people sexually harassed at work leave their employment.
“This means that the employer loses trained and experienced staff and incurs costs in recruiting and training replacements. There may also be problems with absenteeism, staff morale and lost productivity,” says Commission Human Rights Team Educator Lana Hart.
Employers may be liable for harassment by their employees, or of their employees by their clients, if they do not take sufficient steps to prevent harassment occurring. Ms Hart advises Clubs take a pro-active approach and protect themselves from possible legal implications by developing a Sexual Harassment Programme.
“Where a complaint is made to the Commission, or a personal grievance is claimed, there is also the cost of dealing with that complaint. This may include the cost of lawyers and awards of damages,” she explains.
It does not matter whether or not the employer was aware of the problem – they will still be liable for sexual harassment if that harassment occurs in the course of that employee's employment. But if an employer can show that they have taken ‘reasonable and practicable’ steps to prevent sexual harassment in the workplace, then the employer has a defense to a claim of sexual harassment and can avoid liability, even if harassment in the workplace has taken place.
And it doesn’t have to be complicated – a sexual harassment prevention programme can be kept fairly simple but should include a co-coordinator (or specific employee to whom complaints can be taken), a policy statement from the owner of business, a company complaints procedure and education and promotion so employees know their rights and responsibilities and what to do if they get harassed.
Ms Hart suggests that the policy statement should include a description of what sexual harassment is and what it is not. The statement should also say that sexual harassment will not be tolerated in the workplace, and that action will be taken should sexual harassment occur.
She says company procedures will vary according to the size and structure of the club; however there should be provision for complaints of sexual harassment to be handled promptly, privately and in a procedurally fair manner.
Promotion of the policy is vital as it sets down appropriate standards.
“The more often people are made aware of sexual harassment, what it is and that the company will not tolerate it the more it will do to prevent problems occurring.”
For more information see the Commission’s booklet ‘Dealing with Sexual Harassment: A Guide for Employers’.
What to do if you believe you are being sexually harassed
It is important to report any harassment immediately so problems don’t escalate.
“If you’re starting to go down that path of allowing the harassment to happen maybe the harasser is perceiving that it’s OK. Nipping it in the bud early indicates it’s not appropriate and often the solution could be straight forward.”
This could involve simply confronting the harasser about the behaviour but Ms Hart only recommends that people do this if they feel safe.
“It would be wonderful if all women could confront their harassers but in reality it’s not like that. Women who are harassed are often in incredibly powerless positions. I don’t want to put the onus on the victim and say the harassment is their fault if they don’t say anything about it. If you can then do but if you can’t then that’s fine too, it’s not your responsibility.”
People could firstly report the matter to club management. If it is not handled appropriately they can also make a formal complaint to either the Human Rights Commission or to the Employment Relations Authority (ERA), but not both. One big difference between the two processes is that you must complain to the ERA within 90 days of the offensive behaviour whereas the Commission has a one-year time frame. Complaints of sexual harassment go to the Commission’s dispute resolution service. The aim of the disputes resolution process is to reach fair and effective resolutions at the earliest possible opportunity. The process is private and confidential and any person involved in it is protected from victimisation.
So what does the Commission do with complaints of sexual harassment? Commission staff works with the parties involved to try and mediate a resolution to the dispute. They may call round table meetings, meet people on a one-to-one basis and negotiate by phone, fax or letter. Settlements vary but can include an apology, agreement that the behaviour will not happen again and/or compensation. If the Commission is not able to resolve the dispute the complaint has the option of taking the dispute to the Director of the Office of Human Rights Proceedings. The Director’s Office is independent of the Commission. If the complainant wishes, the Director can investigate the dispute further and then attempt settlement and/or decide whether to take the dispute to the Human Rights Review Tribunal. The Human Rights Review Tribunal has the power of a court and its decisions are legally binding. In the review of the Commission’s complaints a quarter of the cases were mediated, nearly half were investigated and of these 83% were found to have substance and were conciliated. While the odd compensation sum can involve a large amount of money typically the average payout is around $6,000.