Let’s just come out and say it: sexual harassment, in any shape or form, is completely unacceptable. It doesn’t matter if it’s on the street, in a bar, at home, or in the workplace, everyone has the right to be safe and free from harassment and bullying. Under the Human Rights Act 1993, everyone has the right not to be sexually harassed.
But the statistics in New Zealand prove we’ve still got a long way to go:
- 10% of workers across all industry groups in WorkSafe’s 2021 Workforce Segmentation and Insights Survey reported experiencing sexual harassment in the last 12 months.
- Women under 30 reported the highest incidence of sexual harassment, at 22%.
- 31% of women and 5% of men working in the legal profession said they had been sexually harassed in a legal environment at some time in their working life - NZ Law Society’s 2018 Legal Workplace Environment Survey.
- More than 900,000 people (23% of adults) have experienced one or more incidents of sexual violence at some point during their lives - NZ Crime and Victim Survey 2020/21.
- Being a victim of sexual assault is strongly associated with psychological distress, low ratings of life satisfaction, and poor feelings of safety.
The problem of workplace sexual harassment is probably more prevalent than these statistics suggest, as it often goes unreported.
So there is a lot more that Kiwi businesses should be doing. We’ve created this blog post to help understand sexual harassment, how to better prevent it from happening in the workplace, and how to protect and support every person in your workforce.
What is sexual harassment?
Sexual harassment is defined in The Human Rights Act as: “any unwelcome or offensive sexual behaviour that is repeated, or is serious enough to have a harmful effect, or which contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment.”.
The Employment Relations Act further defines it as when an employer (or their representative), co-employee, client or customer:
- directly or indirectly makes a request for sexual intercourse, sexual contact, or another form of sexual activity that contains an implied or overt promise of preferential treatment, an implied or overt threat of detrimental treatment or an implied or overt threat about the person’s present or future employment status, or.
- by using language (written or spoken), visual material, or physical behaviour of a sexual nature directly or indirectly subjects an employee to behaviour that is unwelcome or offensive (whether or not that is conveyed) and that, either by its nature or through repetition, has a detrimental effect on that employee’s employment, job performance, or job satisfaction.
Sexual harassment is an abuse of power and it is essential to understand that the perpetrator’s intentions are irrelevant to whether their behaviour caused harm to the victim.
Despite these clear definitions, what people consider sexual harassment may differ, which can make reporting difficult in some cases. However, all organisations have a duty to provide a safe environment for their employees and to address any instances of unacceptable behaviour.
What employers should do
Legal obligations
There are several pieces of legislation that cover employers’ obligations:
- Human Rights Act - you must enforce the right of employees not to be sexually harassed. This covers not only employment but unpaid work and the recruitment process.
- Health and Safety at Work Act - you must look after the health and safety of your workers (and any other workers you influence or direct e.g. volunteers).
- Employment Relations Act - you must respond to and address complaints regarding bullying and harassment at work as part of your duty of good faith and provide a safe workplace.
Zero tolerance policy
Sexual harassment is traumatic and permitting or overlooking it puts your workers and business at risk. Not doing anything about it or not responding appropriately can lead people to think there is a culture of permissiveness, which can seriously affect employee morale and productivity, damage your reputation, and can lead to absenteeism, resignations, and/or personal grievance claims.
From 13 June 2023, employees have 12 months (instead of the usual 90 days) to raise a personal grievance related to sexual harassment. The new time period applies to sexual harassment events that happened, or came to the employee's notice, on or after 13 June 2023, and applies even if the employee leaves their employment during the 12-month period.
Assess and minimise risks
Part of your obligations under the Health and Safety at Work Act is assessing and mitigating, as far as is reasonably practicable, the risks arising from sexual harassment.
WorkSafe has identified certain factors that can put workers at greater risk of sexual harassment, including:
- Having low worker diversity (e.g. a male-dominated workforce).
- Many young workers.
- Workers doing isolated or repetitive work.
- Power imbalances (e.g. between managers and workers or customers and workers).
- Tolerating or encouraging alcohol consumption at work or at work functions.
Look to build a clear picture of your team and what is happening on the front line using a variety of indicators and assessments, e.g. rates of absenteeism or resignations, discussions with your health and safety rep, conducting exit interviews.
If you identify risks, then work with your people on actions to eliminate or mitigate them. External assistance from trained professionals could help.
Have systems in place
Even if you don’t think sexual harassment is happening or haven’t found evidence of it, you should still have systems to deal with it.
That means creating written policies and guides that clearly define what sexual harassment is, how employees can report it (whether they experience it or witness it), the process for dealing with incidents (as with any incidents of misconduct or serious misconduct), what support is available to employees, and the potential consequences for perpetrators (if an investigation upholds concerns of harassment, this could mean disciplinary action up to and including termination of employment).
Make these living documents by keeping them up-to-date and ensuring all employees read and understand them.
This is an area where Kiwi businesses have some work to do. WorkSafe’s 2021 segmentation and insights programme found that only 53% of employers across all sectors had a policy for bullying and harassment.
Learn more about preventing and responding to workplace sexual harassment (Manatū Wāhine Ministry for Women website).
Respond early and consistently
As with any concern or problem, early identification, reporting, and response mean incidents and issues are more likely to be resolved rather than being allowed to worsen.
Workers need to have the confidence and support to speak up without fear of inaction or retaliation, so they raise concerns rather than waiting until the behaviour gets to such a level that they need to make a formal complaint. By then, their (and their co-workers’) wellbeing may be so affected they are no longer effective or want to continue in the job.
Provide support and training
Sexual harassment can be hard to identify and talk about, so ensure all your people can recognise it and know what to do if they experience or see it. This includes knowing where to go for resources and support.
Provide prevention training to help all team members spot problematic behaviour early and effectively deal with it, such as learning about active bystanding techniques.
Ensure your organisation provides support to individuals experiencing harassment. If you don’t have an Employee Assistance Programme, you should consider it.
Bake it in
Your workplace environment and company culture can play a significant role in changing behaviour, but preventing sexual harassment may not be a quick fix, and there are many parts required to make up the whole, from raising awareness of the problem (and how it can be changed) to increasing diversity in your team and empowering all workers.
Managers and leaders need to walk the walk and model appropriate behaviour. Hiring and onboarding practices need to articulate what is expected of employees and what isn’t acceptable. Staff wellbeing needs to be a realistic and ongoing priority, not just a box-ticking exercise.
